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PUBLICATION  s 

OF  THE 


UNIVERSITY  OF  PENNSYLVANIA. 


POLITICAL  ECONOMY  AND  PUBLIC  LAW  SERIES. 
EDMUND  J.  JAMES,   Ph.  D.,  Editor. 


Vol.   III.  WHOLE  NUMBER  IN  SERIES,  10.  No.    1. 


THE  GERMAN  BUNDESRATH. 


A  STUDY  IN  COMPARATIVE  CONSTITUTIONAL  LAW 


BY 
JAMES  HARVEY  ROBINSON,_Ph.  D. 

Lecturer  in  European    History 

in  the 

Wharton  School  of  Finance  and  Economy, 
University  of  Pennsylvania. 


PHILADELPHIA. 
1891. 


purer:  SEVENTY-FIVE  I-/.;\T\ 


JN 
3k  33 

R1 


CONTENTS. 


PAGE 
I. 

Aim  of  the  present  study 5 

The  constitutional  position  of  the  German  monarchs 6 

The  historical  development  of  the  Bundesrath 10 

The  fundamental  divergence  of  the  German  institutions  from  our 

own 21 

The  obstacles  to  the  formation  of  the  North  German  Federation 

and  their  influence  upon  the  character  of  the  Constitution  .    .    .  22 

II. 

The  relation  of  the  Bundesrath  to  the  individual  states.           ...  28 

The  organization  of  the  Bundesrath  as  an  organ  of  the  State  ...  36 

III. 

The  functions  of  the  Bundesrath 4!* 

(1)  Legislative 43 

(2)  Administrative 55 

(3)  Judicial 57 

Conclusion 67 

(Hi) 


NOTE. 

The  text  of  the  German  Constitution,  to  which  reference  is  made  in 
the  following  pages,  has  been  rendered  into  English,  and  furnished 
with  a  brief  historical  introduction  by  Professor  Edmund  J.  James. 

See  publications  of  University  of  Pennsylvania,  Political  Economy  tiud 
Public  Law  Series,  Vol.  I.,  No.  7.  Philadelphia,  1890. 


THE  GERMAN  BUNDESRATH. 


A  STUDY  IN  COMPARATIVE  CONSTITUTIONAL  LAW. 


The  chief  use  and  significance  of  the  study  of  the  politi- 
cal institutions  of  other  nations,  lies  not  so  much  in  the 
acquaintance  with  these  themselves,  as  in  the  broader  and 
more  accurate  view  of  our  own  institutions  which  we 
thereby  gain.  We  first  become  conscious  of  peculiarities 
in  objects  long  familiar  to  us  through  contrast  with  new 
and  different  ones.  In  recognition  of  this  important  psych- 
ological principle,  that  consciousness  is  intimately  associ- 
ated with  and  dependent  upon  contrast,  I  have  attempted 
to  give  a  picture  of  an  institution  quite  foreign  to  our 
notions  of  government,  not  so  much  for  the  sake  of  famil- 
iarity with  a  distant  and  to  us  essentially  unimportant 
organ  of  a  foreign  State,  as  to  make  clearer  our  notions  of 
our  own  system. 

Of  the  three  great  factors  of  government  established  by 
the  Imperial  Constitution  of  Germany,  the  Bundesrath  or 
Federal  Council,  the  Emperor,  and  the  Reichstag  or  repre- 
sentation of  the  people,  the  Bundesrath  is  first  in  order  of 
treatment  in  the  constitution.  Whether  or  no  this  be  an 
intentional  recognition  of  its  preeminence,*  certain  it  is  that 
historically  and  legally  the  Bundesrath  is  the  center  and 
core  of  the  existing  form  of  government.  Hence  a  study 

*"Es  1st  bezeichnend  dass  die  Reichsverfassung  den  vom  Bundes- 
rath handelnden  Absclmitt  vor  jenen  stellt  welcber  dass  Bunde»- 
piasidium  betrifft." — Seydel  im  Jahrbuch  fin-  Gesetzgebung,  u.  s.  w., 
III.,  274. 

(5) 


6  The   German  Bundesralh. 

of  this  institution  inducts  one  most  quickly  and  easily  into 
a  knowledge  of  the  entire  constitutional  system,  and  fur- 
nishes at  once  an  explanation  and  a  justification  of  many  off 
the  peculiarities  which  characterize  it. 

As  the  present  German  Empire  is  a  federation  made  up 
of  states  which,  previous  to  the  formation  of  the  Union, 
led  an  independent  existence,  each  under  its  appropriate 
constitution,  we  naturally  look  for  a  reflection  of  the  pre- 
valent ideas  of  government  on  which  the  state  constitutions 
are  based,  in  the  constitution  adopted  for  the  federation. 
In  examining  the  twenty-five  state  constitutions,  one  finds 
twenty-two  of  them  to  be  monarchical  in  form,  while  the 
three  remaining  ones  only,  those  of  the  free  cities  of  Liibeck, 
Hamburg  and  Bremen,  are  republican.  A  prevailing  char- 
acteristic, then,  of  the  states  of  the  present  German  Empire, 
as  distinguished,  for  instance,  from  those  for  which  our 
constitution  was  formed  in  1787,  is  that  they  are  each  sub- 
ject to  a  monarch.  Before  considering  the  relation  which 
exists  between  the  monarchical  institutions  of  the  individ- 
ual states,  and  the  form  of  the  central  government,  it  will 
be  necessary  to  consider  briefly  the  constitutional  position 
of  the  German  princes,  for  on  an  understanding  of  this  de- 
pends a  clear  idea  of  the  imperial  constitution. 

According  to  the  theory  of  German  constitutional  law, 
the  whole  power  of  the  state  is  vested  in  the  monarch. 
The  various  functions  of  government  find  their  common 
center  in  his  person.  Without  his  consent  or  against  his 
will  nothing  in  the  affairs  of  state  may  take  place.  "  Er 
vereiniyt  in  seiner  Person  die  Fi'dle  staatlicher  Hoheit  und 
Macht}'1*  This  conception  of  the  monarch,  however, .  as 

*  Meyer.     Deutsches  Staatsrecht,  2  Aufl.,  202. 

Sclmlze  writes  (Preusfasches  Staatsrecht,  2  Aufl.,  I.,  153):  "Das 
rnonarchische  Priuzip  nach  seinem  richtigen  Verstandnisse,  nicht  in 
seiner  tendenziosen  Verdrehung,  wie  es  zu  Zeiten  des  Bundes  im 
Shine  des  Absolutismus  ausgebeutet  wurde,  verlangt  nur  :  'dass  die 
gesammte  Staatsgewalt,  dera  Rechte  der  Innebabung  nach,  in  der 


The   German  Bundesrath.  f 

possessor  of  the  whole  power  of  the  state,  no  longer  included 
the  idea  of  unlimited  right  of  self-determination  in  the  ex- 
ercise of  it.  He  is  bound  to  act  in  accordance  with  the 
provisions  of  the  constitution  :  all  his  acts  must  be  counter- 
signed by  a  responsible  minister :  many  of  the  most  im- 
portant functions  of  government,  especially  legislative,  can 
only  be  exercised  in  co-operation  with  the  representatives  of 
the  people.  Still  the  monarch  has  both  legally  and  practi- 
cally the  advantage  over  the  people  in  any  movement  to- 
wards a  more  popular  form  of  government.  He  has  still 
the  tradition  of  unlimited  power  behind  him  ;  the  restric- 
tions which  the  constitution  has  imposed  are  comparatively 
recent,  in  the  chief  state  of  the  Empire,  Prussia,  being 
scarcely  more  than  forty  years  old.  The  autocratic  con- 
ceptions of  the  former  Bundestag  still  linger  in  the  dictum 
that  where  a  doubt  concerning  the  right  to  exercise  a  power 
arises,  the  presumption  is  always  in  favor  of  the  monarch. 
This  doctrine  is,  of  course,  based  on  the  theory  that  such 
rights  alone  fall  to  the  people  as  have  been  expressly 
granted  them,  all  others  remaining  vested,  as  heretofore, 
solely  in  the  monarch.*  Over  against  the  monarch  the 
parliament  appears  simply  as  an  instrument  of  restraint, 
limiting  him  in  the  exercise  of  certain  of  his  powers,  f  In 

Person  des  Staatsoberhauptes  vereinigt  bleibe,  dass  keine  Funktion 
der  Staatsgewalt  von  dem  monarchischen  Mittelpuukt  losgelost  werde, 
dass  in  alien  staatlichen  Dingen  nichts  ohue  und  uichts  gegen  den 
Willen  des  Monarchen  geschehen  konne.'  ' 

*"Er  [the  monarch]  behalt  die  Prasumtion  der  Berechtigung :  es 
stehen  ihm  alle  diejenigen  Befugnisse  zu,  welche  ihm  nicht  ausdnick- 
lich  entzogen,  den  anderen  Organen  Oes  Staates  dagegen  nur  die, 
welche  ihnen  ausdriicklich  eingeraumt  sind." — Meyer.  Deutsches 
Staatsrecht,  p.  202.  See  also  p.  242.  Compare  Schulze,  Deutsches 
Staatsrecht,  I.,  477,  who  expresses  a  somewhat  divergent  view. 

f"Der  Landtag  erscheint  nicht  als  Mittrager  der  Staatsgewalt 
neben  dem  Monarchen,  sondern  als  ein  beschrankender  Factor,  an 
dessen  Mitwirkung  dieser  bei  Ausiibung  einzelner  seiner  Fuuctionen 
gebunden  ist.  Es  stehen  ihm  daher  uur  diejenigen  Rechte  zu,  welche 
ihm  ausdriicklich  beigelegt  sind.'' — Meyer.  Deutsches  Staatsrecht, 
p.  242. 


8  The   German  Bundesrath. 

it  are  vested  none  of  the  sovereign  powers  of  the  state,  for 
these  are  one  and  all  attributes  of  the  prince.  For  example, 
no  bill  becomes  law  because  concurred  in  by  both  branches 
of  the  legislative  body,  even  one  proposed  by  the  ministry 
itself  and  accepted  without  amendment  by  the  representa- 
tives of  the  people.  The  sanction  of  the  monarch  first 
transforms  a  bill  into  a  law  binding  on  the  subject.  To 
grant  this  sanction  the  monarch  is  in  no  way  bound ;  ex- 
pressed in  the  usual  negative  form,  he  has  an  absolute  veto. 
These  legal  conceptions  correspond  with  the  actually  ex- 
isting condition.  The  government  (Reyieruny),  i.  e.,  the 
prince  and  his  immediate  ministers,  stand  over  against  the 
representatives  of  the  people  ( Volksvertretuny]  in  sharp  con- 
trast. The  opposition  has  been  mellowed  by  no  such  grad- 
ual changes  as  meet  us  in  the  history  of  England.  The 
German  prince  rules  as  well  as  reigns.  Parliamentary  gov- 
ernment is  unknown,  and  would  in  fact  ill  correspond  alike 
with  the  prevailing  conditions  and  the  accepted  theories. 
The  ultimate  determining  factor  in  the  State  is  not  the  will 
of  a  party,  but  the  supposedly  impartial  decision  of  the 
monarch,  who  is  above  all  parties.*  It  is  significant  for  the 
correct  judgment  of  the  relation  between  monarch  and 
people  that  the  initiative,  although  no  longer  legally,-*-  is 
still  practically  in  large  measure  confined  to  the  monarch. 
The  "  Reyieriing  "  has  taken  the  initiative  so  long  that  it 
continues  to  do  so,  even  under  the  altered  conditions.  The 

*  In  regard  to  the  possibility  of  conflict  between  the  Landtag  and 
the  ministry,  Schulze  observes:  "In  einem  solchen  Falle,  ist  der 
Monarch  welcher  im  konstitutionellen  Staate  liber  den  Parteieu  stehen 
mid  auch  seinem  eigenen  Ministerium  gegeuiiber  eice  vorurtheilsfreie 
Stellung  bewahren  soil,  recht  eigentlich  zu  einem  personlichen  Ein- 
greifen  berufen,  urn  den  Staatsverderblichen  Konflikt  zu  losen." 

Deut.  Staatsr.,  I.,  495. 

For  the  opinion  of  Wm.  I.  on  this  point  see  Sybel:  "  Die  Begriin- 
dung  des  Deutschen  Reiches,"  II.,  284-5. 

f  In  some  of  the  lesser  German  states,  the  iniative  is  still  confined 
to  the  crown. — See  Meyer.  Staatsrecht,  463. 


The   German  Bundesrath.  !> 

people  are  in  general  satisfied  with  knowing  and  opposing 
what  they  do  not  want,  and  too  little  intent  on  determining 
what  they  do  require.* 

In  view  of  what  has  been  said,  it  will  not  be  surprising  if 
we  find  the  monarchs,  as  such,  playing  an  important  role  in 
the  Empire,  as  well  as  in  their  own  dominions.  So  import- 
ant and  universal  a  characteristic  of  the  individual  States 
as  the  prevailing  monarchical  form  of  government  could 
hardly  fail  to  exercise  a  marked  influence  on  the  form  of 
the  federal  constitution.  The  Imperial  Constitution  is  in- 
deed, as  will  appear  later,  based  on  and  interpenetrated  by 
the  monarchical  idea.  Nevertheless,  and  in  spite  of  the 
title  Emperor  borne  by  one  of  the  chief  organs  of  State,  we 
may  not  regard  the  present  German  federation  as  a  mon- 
archy. Such  a  view  is  from  a  legal  standpoint  quite  false 
and  wholly  out  of  consonance  with  the  accepted  notions  in 
Germany  itself.  Politically,  the  King  of  Prussia  exercises 
in  many  respects  an  influence  analogous  to  that  which 
would  fall  to  a  monarch  of  the  Empire  supposing  such  to 
exist.  Legally,  however,  the  Emperor  and  the  King  of 
Prussia,  although  the  same  person,  are  to  be  carefully  dis- 
tinguished. The  title  "Kaiser,"  which  William  accepted  in 
1871,  is  somewhat  misleading,  for  it  is  associated  with  much 
that  does  not  belong  to  the  position  in  the  State  which  it 
now  designates,  f  In  fact,  we  have  here  to  do  with  an  en- 

*  See  Westerkamp  "Uber  die  Reichsverfassung,"  127-8,  who  criti- 
cizes the  "  wesentlichen  negativen  Haltung  der  Landesvertretuiigen. " 
He  quotes  Carl  Schurz  (p.  128,  note)  in  substantiation  of  the  asserted 
difference  which  exists  in  this  respect  between  our  own  country  and 
the  German  states. 

f  Comparing  the  Roman  and  the  holy  Roman  Empire  with  the  pres- 
ent German  one,  Held  writes:  "  Wollte  man  die  Aehnlichkeiten  unter 
diesen  drei  Kaiserreichen  noch  so  hoch  aurechnen,  so  miisste  man 
doch  zustehen  dass  die  rechtlichen  Verschiedenheiten  unter  ihnen  zu 
gross  sind,  als  dass  sie  unter  sich  im  Verhaltniss  der  Rechtsnachfolge 
stehen  konnten,  da  nicht  bloss  das  Recht  des  Kaisers  nach  Ursprung 
und  Gehalt,  sondern  auch  das  Object  des  Kaiserthums  in  jedeni  der 
drei  Fiille  im  wesentlich  andcres  ist." — Das  Kaiserthum  als  Rechts* 
begriff.  Wurzburg,  p.  35. 


10  The   German  Bundesrath. 

tirely  peculiar  political  creation,  which  should  not  be 
judged  by  previous  institutions  of  the  same  name,  but  must 
be  considered  for  itself:  for  it  is,  strangely  enough,  in  the 
Bundesrath,  and  not  in  the  Emperor,  that  we  find  the  char- 
acteristics of  a  monarch  most  fully  exemplified.  This  truth 
finds  its  classical  expression  in  Bismarck's  famous  utterance, 
"  The  sovereignty  rests  not  with  the  Emperor,  but  in  the 
[ideal]  unity  of  the  confederated  governments."  (Die 
Souveranitat  ruht  nicht  beim  Kaiser,  sie  ruht  bei  der 
Gesammtheit  der  verbiindeten  Regierungen.)*  Peculiar  as 
this  conception  is,  it  was  the  product  of  very  easily  discern- 
ible conditions  existing  at  the  time  of  the  formation  of  the 
constitution,  and  is  by  no  means  new.  As  Laband  says,  "the 
Bundesrath  was  neither  discovered  nor  invented  at  the  time 
of  the  foundation  of  the  North  German  Federation,  but  was 
at  once  a  spontaneous  generation  and  a  historical  fact."f 
Some  attention  to  its  origin  is  therefore  the  first  requisite  to 
an  understanding  of  this  most  peculiar  of  all  the  institutions 
of  German  constitutional  law. 

In  1814,  after  Napoleon's  forced  abdication,  the  reorgan- 
ization of  the  remains  of  the  Holy  Roman  Empire  became 
an  object  of  international  solicitude.  The  first  Peace  of 
Paris  touches  on  this  topic  in  the  general  provision  that 
"  Les  etats  de  1' Allemagne  seront  independents  et  unis  par 
un  lien  fede'ratif."  $  Obviously  the  serious  question  of  the 
manner  of  reconciling  the  independence  of  the  members  of 
the  proposed  union  with  the  creation  of  a  central  power 
worthy  of  the  name  was  here  in  no  way  answered.  In  the 
discussion  of  the  new  organization  of  Germany,  which  took 

*  In  the  Reichstag,  1871. 

f  .  .  .  "der  Bundesrath  [ist]  bei  der  Griindung  des  Norddeutschen- 
Bundes  uberhaupt  nicht  erdacht  und  erfunden  worden,  sondern 
gleichsam  von  selbst  entstanden,  historisch  gegeben  gewesen." 
Staatsrecht  des  Deutschen  Reiches.  Zweite  umgearbeitete  Auflage 
(2  Bde.),  Freiburg,  i.  B.,  1888.  I.,  215. 

t  Art.  VI. 


The   German  Bundesrath.  11 

place  at  the  Congress  of  Vienna,  Prussia's  efforts  were 
directed  toward  the  establishment  of  a  firm  union,  while 
Austria  was  intent  on  the  formation  of  the  loosest  possible 
confederation.  She  had  already  promised  Bavaria  and 
Wiirtemberg  that  their  newly  acquired  sovereignty  should 
suffer  no  diminution,  and  in  these  States  she  found  natural 
and  sturdy  allies.  The  empty  result  of  the  deliberations 
was  the  so-called  Bundesacte*  or  constitution  under  which 
Germany  lived  with  a  short  interruption  until  1866.  This 
confederation  was  officially  defined  in  1820  as  an  interna- 
tional Union  of  the  German  sovereign  Princes  and  free 
cities.f  The  members  of  the  Confederation  were  thus  not 
States,  but  monarchs.  The  states  found  their  entire  and 
exclusive  representation  in  the  person  of  their  prince.  Still 
the  membership  was  confined  to  actually  reigning  sove- 
reigns $  it  was  no  personal  right  of  an  individual.  By  way 
of  illustrating  this  somewhat  peculiar  conception  of  the 
union,  it  may  be  pointed  out  that  the  number  of  states 
comprised  in  the  Confederation  bore  no  necessary  relation 
to  the  number  of  members,  but  might,  as  was  actually  the 
case,  exceed  it.  The  number  of  members  however  could 
never  be  greater  than  that  of  the  States,  for,  although  one 
prince  could  rule  over  several  States  united  in  a  personal 
union,  no  State  could  be  subject  to  more  than  one  prince. 

The  sole  organ  of  the  Confederation  was  the  Diet,  (Bun- 
destag] permanently  assembled  at  Frankfort-on-the-Main. 
The  plenipotentiaries  who  composed  this  assembly  were  the 

*  A  short  description  of  this  constitution  is  to  be  found  in  Sybel, 
Begrundung  des  Deutschen  Reiches,  I.,  48  ff.  Also  in  Meyer  Staatsrecht 
2  te  aufl.  pp.  84-111,  and  in  Schulze,  Deut.  Staaisr.  L,  91-111. 

f  "Der  deutsche  Bund  1st  ein  volkerrechtlicher  Verein  der  deutschen 
souverainen  Fiirsten  und  freien  Stadte."  Wiener  Schluss-  Acte.  Art. 
I.  Mayer's  Corpus  Juris  Confed.  Ger.,  II.,  152. 

\  The  exceptional  position  of  the  Free  Cities,  owing  to  their  unim- 
portance, may  be  passed  over,  here  as  elsewhere,  without  explicit 
mention. 


12  The   German  Bundesrath. 

instructed  representatives  of  the  members  of  the  unionr 
strictly  responsible  to  the  prince  whom  they  represented 
for  the  observance  of  their  instructions.  They  enjoyed  all 
those  rights  which  belong  by  the  rules  of  international  law 
to  ambassadors,  especially  that  of  ex-territoriality  when  at- 
tending the  meetings  at  Frankfort.  Thus  the  Diet  was  no 
free  deliberative  assembly  where  the  members  voted  ac- 
cording to  their  individual  convictions,  but  a  device  by 
means  of  which  the  wishes  and  opinions  of  the  monarchs 
might  be  expressed  without  the  necessity  of  their  personal 
attendance  on  the  meetings. 

The  Diet  had  two  distinct  modes  of  procedure,  distin- 
guished from  one  another  by  the  apportionment  of  the 
votes  among  the  members  of  the  Confederation  and  the 
character  of  the  majority  necessary  for  the  passage  of  a  bill. 
When  the  assembly  met  in  the  form  of  a  select  council,* 
as  it  did  for  the  transaction  of  the  ordinary  business,  no 
member  had  more  than  one  vote,  while  the  smaller  states 
were  grouped  into  so-called  curise,  those  comprising  each 
group  having  but  one  vote  among  them.  A  simple  majority 
sufficed  for  the  passage  of  a  measure.  More  important  mat- 
ters, such  as  changes  in  the  constitution,  the  decision  in  re- 
gard to  peace  and  war,  etc.,  could  only  be  acted  upon  by  the 
so-called  Plenum.  Here  even  the  most  insigificant  member 
of  the  Confederation  had  his  own  independent  vote,  while 
in  order  to  give  them  their  appropriate  weight,  the  larger 
states  were  assigned  more  than  one.  Austria,  Prussia,  Sax- 
ony, Bavaria,  Hanover  and  Wurtemberg,  for  example,  each 
had  four  votes,  then  followed  five  members  with  three,  and 
three  with  two,  the  remaining  twenty-four  having  but  one 
each.f  In  the  Plenum  the  opposition  of  a  single  member 
sufficed  to  frustrate  the  passage  of  a  bill.  It  is  unnecessary 
to  describe  this  institution  more  carefully  here,  as  many  of 
its  peculiarities  reappear  in  its  successor,  the  Bundesrath. 

*  Known  as  Der  engere  Rath. 
f  Bundesacte,  Art.  VI. 


The  Crerman  Bundesrath.  13 

The  Confederation,  sickly  from  its  birth,  dragged  out  a 
miserable  existence  of  half  a  century,  until  Prussia  finally 
undertook  the  dangerous  operation  which  alone  could 
render  a  healthful  development  possible.  On  June  14th, 
1866,  the  disagreement  between  the  two  great  powers, 
Prussia  and  Austria,  in  respect  to  the  disposal  of  the  Elbe 
provinces,  reached  a  crisis.  Under  the  influence  of  Austria, 
the  Diet  voted  to  mobilize  the  troops  of  the  Confederation 
with  the  intention  of  directing  them  against  Prussia. 
Prussia  thereupon  declared  that  the  bond  of  union  was 
broken  and  the  Confederation  no  longer  existed.  Its  ex- 
ample was  followed  by  many  of  the  other  States.  In  the 
treaties  following  Prussia's  victory  at  Koniggratz  (Sadowa), 
the  dissolution  of  the  old  union  was  formally  recognized  by 
Austria  and  those  states  which  had  not  yet  done  so.* 
Prussia,  which  had  long  been  intent  on  reform,  could  now 
realize  her  cherished  hopes  without  danger  of  Austrian  in- 
terference. Her  plan  for  a  new  union  of  the  twenty-two 
German  States  lying  north  of  the  river  Main,  embraced 
three  main  points;  an  increased  field  of  activity  for  the 
central  government,  provision  for  an  executive,  and  the  in- 
troduction of  a  representation  of  the  people,  which,  as  in 
the  individual  States,  was  to  control  the  exercise  of  certain 
powers  of  government. 

Just  before  the  14th  of  June,  Bismarck  had  sent  a  circu- 
lar note  to  the  several  States  containing  the  sketch  of  a 
constitution,  and  asking  if  they  would,  should  the  tottering 
Confederation  finally  give  way,  join  a  new  Union  on  the 
basis  of  the  plan  submitted .f  This  plan  proposed  that  the 
new  union  should  comprise  all  the  countries  of  the  old,  ex- 
cept those  owing  allegiance  to  the  Emperor  of  Austria  and 
the  King  of  Holland ;  but  such  parts  of  Prussia  as  had  been 
outside  the  former  boundary  should  be  admitted,  as  well  as 
Schleswig — in  short,  excluding  Alsace-Lorraine,  the  boun- 

*  Excepting  Liechtenstein. 

f  See  Hahn.     Zwei  Jahre  Preussich-Deutscher  Politik,  p.  121. 


14  The   German  Bundesrath. 

daries  should  be  those  of  the  present  empire.  Between 
many  of  the  articles  of  this  sketch  and  those  ultimately 
adopted,  there  is  such  a  resemblance  both  in  matter  and 
form  of  expression  that  it  may  be  regarded  as  the  first 
draft  of  the  North  German  Constitution. 

The  first  official  formulation*  of  the  extent  and  appella- 
tion of  the  new  confederation  occurs  in  the  Preliminary 
Peace  of  Nicolsburg  of  July  26th,  1866,  where  Austria  con- 
sents to  a  rearrangement  of  Germany  without  her  partici- 
pation, and  "promises  to  recognize  the  narrower  union 
which  His  Majesty  the  King  of  Prussia  is  to  establish  north 
of  the  line  of  the  Main,  and  agrees  that  the  states  lying  to 
the  south  of  this  line  may  unite,  f  the  regulation  of  the 
national  bond  with  the  North  German  Federation  (Nord- 
deutscher  Bund)  being  reserved  for  farther  understanding 
between  the  parties.":}:  This  provision  was  acceded  to  by 
all  the  other  States  lately  at  war  with  Prussia,  and  the  neg- 
ative conditions  for  farther  progress  were  insured.  The 
dualism  which  had  determined  Ger.nan  history  for  a  half  a 
century  was  forever  done  away  with.  The  rock  against 
which  Prussia's  plans  of  reform  in  1849-50  had  suffered 
shipwreck  no  longer  existed. 

The  positive  results  were  brought  about  in  the  following 
order.  It  must  be  kept  in  mind  that  the  twenty-two  states 
in  question  were  sovereign  and  independent  countries,  and 
the  forms  observed  were  those  of  international  intercourse. 
That  no  violation  of  any  of  these  rules  took  place  is 
a  subject  of  congratulation  with  German  jurists,  and  it  is 
certainly  a  matter  of  no  little  interest  to  see  how  this  re- 
sult was  achieved ;  how  of  two  mutually  exclusive  ideas, 
that  of  independence  gave  way  peacefully  and  legally  to 

*See  Laband.     Staatsr.,  I.,  15. 

f  This  plan  of  a  union  between  the  South  German  states  was  never 
carried  out. 

|  See  Hahn.     Zwei  Jahre,  etc.,  p.  188. 


The   German  Bundesrath.  15 

that  of  subordination  to  a  higher  power.  Immediately  after 
the  dissolution  of  the  old  Confederation,  Prussia  invited 
those  countries  north  of  the  Main,  with  whom  she  was  on 
friendly  terms,  to  enter  into  an  alliance  with  her.  Sixteen 
states  acceded,  and  on  the  18th  of  August,  1866,  a  treaty 
was  signed  at  Berlin,  which  was  ultimately  agreed  to  by 
the  other  rulers  north  of  the  Main,  including  the  King  of 
Saxony  and  the  Duke  of  Hesse-Darmstadt,  a  part  of  whose 
possessions  lay  within  the  proposed  boundary.  It  is  this 
alliance  which  forms  the  international  foundation  on  which 
the  North  German  Federation,  and  hence  the  German  Em- 
pire rests,  and  it  deserves  a  little  more  careful  consideration 
even  in  this  short  sketch.*  Unlike  the  treaty  of  confeder- 
ation in  1815,  this  was  not  a  perpetual  league,  but  was  lim- 
ited expressly  to  one  year.  At  the  expiration  of  this  term 
the  treaty  relations  were  extinguished  of  themselves,  if,  by 
that  time,  the  purpose  of  the  treaty  had  not  been  realized 
in  the  establishment  of  a  lasting  federation.  The  contract- 
ing parties,  after  concluding  an  offensive  and  defensive  alli- 
ance, pledged  themselves  to  insure  the  realization  of  the  ends 
of  the  temporary  alliance,  by  means  of  a  constitution  based 
on  the  draft  submitted  by  Prussia  on  June  10th,  1866. 
They  agreed  to  send  plenipotentiaries  to  Berlin  to  deliber- 
ate on  the  draft  of  a  constitution  which  should  be  sub- 
mitted to  a  parliament  for  consideration  and  ultimate 
acceptance.  This  parliament  was  to  be  called  together  by 
the  common  action  of  the  allied  cabinets,  who  pledged 
themselves  to  order  for  this  purpose  an  election  of  repre- 
sentatives of  the  people  on  the  basis  of  the  election  law  of 
1849.  In  these  two  bodies,  i.  e.,  the  congress  of  plenipoten- 
tiaries of  the  several  monarchs,  and  the  representatives  of 
the  people,  we  have  the  beginnings  of  the  present  Bundes- 
rath and  Reichstag. 

Obviously  no  confederation  is  established  by  these  pro- 

*  Compare  Laband.     Staatsr.,  I.,  16  ff. 


16  T)ie  German  Bundesrath. 

ceedings,  for  the  parties  have  only  agreed  to  establish  one. 
No  constitution  is  agreed  upon,  but  simply  the  method  in 
which  the  constitution  is  to  be  brought  into  being.*  About 
the  middle  of  December  the  congress  of  plenipotentiaries 
met  as  arranged  in  Berlin,  and  in  secret  session  took  into 
consideration  a  new  draft  of  a  constitution  submitted  by 
Bismarck,  in  the  name  of  the  Prussian  government.  This, 
in  an  amended  form,  was  submitted  to  the  Reichstag  in 
Berlin,  February  24th,  1867.  In  the  speech  from  the 
thronef  King  William  said  that  the  allied  governments, 
while  adhering  to  the  approved  arrangement  of  the  earlier 
system,  had  agreed  on  a  number  of  definite  and  limited 
alterations,  which  were  not  only  undeniably  necessary,  but 
at  the  same  time  lay  within  the  bounds  of  immediate  possi- 
bility. The  important  part  which  the  past  played  in  the 
German  constitution  is  here  clearly  recognized.  The  re- 
forms introduced  were  strictly  limited  by  the  existing  con- 
ditions. There  was  no  attempt  to  form  a  constitution  based 
on  abstract  principles,  as  in  1848.  Although  the  ground, 
as  Bismarck  expressed  it,  was  ill-adapted  for  the  constitu- 
tional structure,  it  had  nevertheless  to  be  utilized.  In  no 
institution  of  the  present  political  organization  of  Germany, 
do  we  find  so  clear  ah  expression  of  the  various  factors 
which  had  to  be  considered  by  the  framers  of  the  con- 
stitution as  in  the  Bundesrath.  The  adherence  to  the 
"  approved  arrangements"  of  the  past  comes  most  clearly 
to  light  in  the  character  and  organization  of  this  body. 
Such  characteristics  of  the  earlier  system  as  answer  the 
existing  requirements  are  retained.  Although  no  legal 
continuity  exists  between  the  Confederation  of  131.~>  and 
the  new  Empire,  the  Bundesrath  is  a  connecting  link  be- 
tween the  old  and  the  new.  Essentially  novel  in  the  con- 
stitution submitted  to  the  Reichstag  in  1866,  was  the  ad- 

*  See  Haenel.     Vertragsmtissige  Elemente  der  deutschen  Reicfaver- 
fassung,  I.,  70,  and  Laband,  I.,  17. 

fThrourede:  Hahn.     Zv-ei  Jaltre.  ftr.,  p.  497. 


The   German  Bundesrath.  17 

mission  of  the  people  to  a  share  in  the  government.  Here 
the  precedents  furnished  by  the  constitutional  development 
of  the  individual  states  were  strictly  adhered  to.  In  addi- 
tion, the  central  government  was  given  increased  powers  in 
the  regulation  of  commerce  and  trade.  Important  altera- 
tions were  also  made  in  the  organization  of  the  army.* 
Although  Bismarck  complained  that  the  representatives  of 
the  people,  not  sufficiently  impressed  with  the  "  hitherto  un- 
exampled unanimity  of  the  rulers  of  30,000,000  Germans," 
as  expressed  in  the  draft  of  the  constitution,  persisted  in 
presenting  amendments,  this  had  the  effect  of  shedding  no 
little  light  on  the  nature  of  the  proposed  government.  The 
various  objections  had  to  be  met  by  the  commissioners  of 
the  allied  governments,  and  so  the  gap  left  by  the  absence  of 
a  report  of  the  proceedings  in  secret  conclave  was  in  a  way 
filled  out.  The  final  draft,  which  the  congress. of  plenipo- 
tentiaries hastened  to  accept  on  the  day  of  its  passage  in  the 
Reichstag,  while  adhering  in  the  main  to  the  original  plan,f 
contained  a  number  of  alterations  and  improvements.:}: 

The  federation  was  not,  however,  as  yet  established. 
Many  of  the  states  had  only  granted  the  members  sent  to 
the  Reichstag  the  right  to  deliberate  on  the  constitution. 
The  constitution  had  to  be  ratified  by  each  state.  The 
cabinets  could  not  legally  enter  such  a  union  as  was  pro- 
posed, for  a  radical  change  in  each  and  every  particular 
state  constitution  was  involved,  and  such  amendments  could 
take  place  only  with  the  consent  of  the  legislature.  In 
each  of  the  states,  the  needed  alterations  were,  with  a  due 
observance  of  the  legal  forms,  carried  out,  and  the  new 
Constitution  of  the  North  German  Federation  was  pub- 
lished in  each  of  them  with  the  identical  provision  that  the 
law  should  go  into  force  on  the  1st  of  July,  1867.  Thus 

*  See  Laband.     Slaatsrecht,  L,  22. 

f  For  an  essential  change  see  Haenel.     Die  organisatorische  Entwick- 
lung  der  deutschen  Reichsverfassung,  p.  9  ft'. 
JLaband.     Staatsrecht,  I.,  28. 


18  The   German  Bundesrath. 

each  sovereign  and  independent  country  declared  its  inten- 
tion to  enter  the  union  July  1st.  Obviously  there  is  no 
room  here  for  a  discussion  regarding  the  relative  age  of 
states  and  union.  The  states  were  confessedly  the  parties 
to  a  contract  which  resulted  on  the  1st  of  July,  1867,  in  the 
formation  of  a  new  compound  state.  It  is  not  to  be  in- 
ferred, however,  that  because  the  origin  of  the  union  was 
contractual,  the  Constitution  of  the  German  Empire  is  re- 
garded as  in  any  sense  a  compact  between  sovereign  states. 
On  the  contrary,  the  tendency  of  German  jurists  is  to  deny 
the  attribute  of  sovereignty  to  the  states,  and  ascribe  it  to 
the  Empire  alone.*  The  individual  state  is  even  deprived 
of  the  old  consolation  of  believing  itself  "sovereign  in  its 
sphere,"  for  not  only  may  the  power  of  the  central  govern- 
ment be  easily  extended  without  its  consent,  f  but  the 
whole  theory  of  a  "division  of  sovereignty,"  which  was 
formerly  looked  upon  as  the  distinguishing  characteristic  of 
a  federative  system,  has  of  late  received  some  rude  shocks, 
and  is  discarded  as  contradictory  and  untenable  by  a  num- 
ber of  eminent  writers.  \ 

The  new  Union  was,  as  we  have  seen,  limited  to  the 
countries  lying  north  of  the  Main.  The  considerable  king- 
dom of  Bavaria,  that  of  Wiirtemberg,  the  Grand-Duchy  of 
Baden  and  the  southern  half  of  Hesse,  which  together 
form  over  one-fifth  of  the  present  Empire,  were  as  yet  com- 
pletely independent  of  the  North  German  Federation  and 

*See  Laband,  Staatsrecht,  I.,  81  if.  Also  Meyer,  Skiatsrecht,  who 
enumerates  other  authorities,  pp.  13  note,  170  and  note  6.  Prof.  Max 
Seydel,  of  Munich,  the  "Calhoun  of  Germany,"  is  the  most  able  oppo- 
nent of  this  generally  accepted  view  of  the  nature  of  the  union.  His 
thesis  is,  "Die  einzelnen  Staaten  sind  der  Bund.'"  He  has  developed 
his  theory  in  a  little  book  called,  Commentar  zur  Verfassungs-Urkunde 
fur  das  Deutsche  Reich.  Freiburg,  i.  B.  1873. 

f  Prussia  occupies  practically,  although  not  theoretically,  an  excep- 
tional position  in  this  respect,  inasmuch  as  she  possesses  a  sufficient 
number  of  votes  to  prevent  any  alteration  of  the  constitution. 

$  See  the  interesting  criticism  in  Laband.     Staatsr.,  I.,  58  if. 


The   German  Bundesrath.  19 

of  each  other.  The  constitution  was,  however,  expressly 
arranged  so  that  the  southern  states  might  be  admitted 
easily  and  without  any  alteration  of  the  fundamental  law. 
A  simple  legislative  enactment  was  declared  sufficient,  no 
constitutional  amendment  being  required.*  The  southern 
boundary  was,  so  to  speak,  not  yet  definitely  fixed.f  All 
depended  on  the  attitude  of  the  rulers  and  people  of  the 
southern  states,  when  the  long  cherished  dream  of  German 
unity  should  be  realized.  Before  the  great  shock  came 
which  broke  down  the  barrier  of  particularism  separating 
the  states  of  the  south  from  the  north,  an  economic  union, 
the  shadow  which  the  coming  empire  cast  before  it,  ^  had 
bound  Germany  in  respect  to  one  great  field  of  interests 
into  a  whole.  In  the  "  Customs  Union  "  re-established  in 
1867,1  she  found  a  much  closer  and  more  hopeful  unity 
than  that  existing  under  the  Confederation  of  1815.§  Al- 
though short-lived,  this  organization  is  of  the  greatest  in- 
terest as  a  link  in  the  chain  of  development.  It  was 
organized  on  the  plan  of  the  constitution  of  the  North 
German  Federation.^  There  was  a  common  organ  of  the 
cabinets  of  the  allied  states  in  the  Bundesrath  of  the  Cus- 
toms Union,  a  general  representation  of  the  people  in  the 
Customs  Parliament.  The  first  was  formed  by  the  admis- 

*Laband.  Staatsrecht,  I.,  35.  The  Cons,  provided  :  "  Der  Eintritt 
der  suddeutschen  Staaten  oder  eines  derselben  in  den  Bund  erfolgt 
auf  den  Vorschlag  des  Bundes- Presidiums  ini  Wege  der  Bundesgesetz- 
gebung."  Art.  79,  1  2. 

f  Martitz.  Betrachtung  iiber  die  VerfUssung  des  Norddeutschen 
Bundes,  p.  9. 

^  "  Die  Verfassung  des  Zollvereins  war  der  Verfassung  des  Nord- 
deutscheu  Bundes  so  vollig  analog,  dass  sie  wie  eiu  Schatteii  erscheint, 
den  die  Reichsverfassung  vor  sich  her  warf."  Laband,  Staatsrecht, 
I.,  35. 

|  Hahn.     Zwei  Jahre,  etc.,  pp.  624  ff. 

§  The  economic  union  was  preceded  by  a  military  one.  Laband, 
I., "34. 

,  Zwei  Jahre,  etc.,  pp.  624  ff. 


20  The   German  Bundesrath. 

sion  of  the  plenipotentiaries  of  the  southern  States  into  the 
Bundesrath  of  the  North  German  Federation;  the  Parlia- 
ment by  the  admission  of  the  representatives  of  the  people 
elected  in  the  Southern  States  into  the  Reichstag.  Prussia 
presided  as  in  the  North  German  Federation.  Laws  were 
passed  by  a  simple  majority  of  both  bodies,  the  old  require- 
ment of  unity  which  had  existed  in  the  previous  Customs 
Union  being  abolished.  "Thus  to  a  temporary  interna- 
tional union  was  given  a  constitution  borrowed  from  a  true 
state."* 

The  short  and  glorious  conflict  with  France  carried  on  by 
North  and  South  alike,  produced  the  conditions  necessary 
to  change  the  international  union  heretofore  existing  into 
a  real  Federation.  The  Southern  States  after  Sedan  sent 
plenipotentiaries  to  Versailles  to  consider  with  the  Presi- 
dent of  the  North  German  Federation  their  reception  into 
that  body.  A  treaty  between  the  Federation  on  the  one 
hand  and  Baden  and  Hesse  on  the  other,  was  concluded  at 
Versailles,  November  15,  1870,  to  which  was  appended  a 
constitution  of  the  German  Federation  containing  such 
amendments  to  the  North  German  constitution  as  the  ad- 
mission of  Baden  and  southern  Hesse  demanded.  Many  of 
the  changes  were,  however,  made  out  of  regard  to  the  future 
admission  of  Bavaria,  whose  wishes  were  already  known. f 
The  example  was  almost  immediately  followed  by  Bavaria 
and  Wiirtemberg.  In  all  these  transactions,  the  States 
north  of  the  Main  appeared  always  as  a  whole.  No  new 
union  was  formed,  the  old  was  only  extended  ;  the  legal 
continuity  between  the  North  German  Federation  and  the 
German  Empire  is  complete. 

Although  the  renewal  of  the  expression  "Kaiser  und 
Reich"  which  took  place  at  the  suggestion  of  that  unhappy 
prince,  King  Lewis  II.  of  Bavaria,  did  not  materially  alter 

*Schulze,  Deut.  Staatsr.,  I.,  167. 
fSclmlze,  Deut.  Staatsr.,  I.,  170. 


The   German  Bundesrath.  21 

the  constitution,  a  revision  had  become  necessary  for  other 
reasons.  The  fundamental  law  of  Germany  was  at  this  time 
contained  in  three  separate  documents,  i.  e.,  the  constitution 
agreed  upon  by  Baden,  Hesse,  and  the  North  German  Fed- 
eration, November  15th ;  the  treaty  between  these  States 
and  Wlirtemberg,  November  25th,  and  that  between  the 
North  German  Federation  and  Bavaria,  November  23d. 
To  collect  and  formulate  these  scattered  provisions  into  a 
definite  Imperial  Constitution  was  the  last  act  of  the  mag- 
nificent political  drama  which  we  have  just  reviewed.* 

The  present  German  Constitution  is  a  somewhat  puz- 
zling document.  It  is  in  style  far  inferior  to  that  of  our 
own  country ;  the  forms  of  expression  are  uncouth  and 
sometimes  inexact.f  Hence,  particularly  to  a  foreigner, 
many  clauses  are  obscure  and  misleading.:}:  This  is  due 
to  the  process  of  its  formation.  The  Constitution  of  the 
North  German  Federation  came  into  being  just  after  a 
great  war,  coupled  with  grave  internal  complications  in  the 
Prussian  state  itself.  It  was  a  time  when  something  had 
to  be  done;  when  substance  took  precedence  of  form.|| 
The  revision  embracing  the  changes  incident  to  the  en- 
largement of  the  Federation  by  the  admission  of  the 
Southern  States  shows  little  improvement.  Consequently- 
one  cannot  be  too  guarded  in  his  inferences.  It  must 
moreover  always  be  kept  in  mind  that  the  German  Con- 
stitution differs  from  ours  in  origin,  nature  and  purpose,  and 
therefore  no  simple  comparison  of  the  clauses  in  the  two 
can  serve  the  purposes  of  real  study.  "We  must,"  as 

*  This  document  has  never  been  altered  by  formal  amendment,  al- 
though in  some  points  the  law  has  undergone  important  material 
changes. 

fHaenel,  Organ.  Entwicklitng,  etc.,  p.  8. 

$  Haenel  cleverly  explains  several  knotty  points  by  drawing  into 
consideration  the  various  drafts  which  lie  behind  the  present  constitu- 
tion. 

I  Cf.  Bismarck  in  the  Reichstag.,  Apr.  16th,  1869. 


22  The   German  Bundesrath, 

Schaffle  says,  "accustom  ourselves  to  look  at  every  sov- 
ereign state  in  each  of  its  stages  of  development  as  a 
political  personality."*  Nowhere  is  this  more  necessary 
than  in  dealing  with  the  German  Constitution.  In  it  we 
find  the  cherished  formulations  of  political  speculation 
giving  way  to  the  demands  of  the  actual.  We  find  a  great 
state  springing  up  from  a  chaos  of  weak  principalities  and 
taking  a  commanding  place  among  the  powers  of  the 
world.  Yet  a  great  number  of  the  rules  formulated  by 
political  writers  of  the  eighteenth  century,  which  played  so 
considerable  a  part  in  the  formation  of  our  own  federal 
system,  are  ignored  in  the  present  German  Constitution. 
The  doctrine  of  a  division  of  powers,  for  instance,  is  neither 
realized  in  practice  nor  accepted  in  theory.  We  find  no 
checks  and  balances;  no  supreme  court  empowered  with 
the  decision  of  constitutional  conflicts.  The  representatives 
of  the  people  do  not  fall  into  two  houses  of  legislation ;  the 
central  power  does  not  in  general  execute  the  laws  it 
makes;  the  federal  treasury  is  largely  and  purposely  de- 
pendent on  the  contributions  of  the  several  stat.es.  In 
short,  the  peculiar  conditions  existing  at  the  time  of  the 
establishment  of  the  union  are  everywhere  reflected  in  the 
provisions  of  the  constitution.  The  old  definition  of  a 
federation  showed  itself  too  narrow,  and  the  jurists  of  Ger- 
many have  since  been  endeavoring  to  formulate  a  concep- 
tion which  should  correspond  to  the  new  political  phenom- 
enon. 

In  the  formation  of  the  North  German  Federation  in 
1807,  the  difficulties  to  be  surmounted  and  the  conflicting 
interests  to  be  reconciled  were  by  no  means  inconsiderable. 
It  was  necessary  to  give  the  requisite  form  to  extremely 
unmanageable  material.  The  various  sovereign  states 
which  were  to  be  united  contained  in  all  some  thirty-three 
millions  of  inhabitants,  but  of  these  a  single  one,  Prussia, 

*  Ban  und  Leben  des  socialen  Rorpers,  IV.  411.  Quoted  by  Riime- 
1m. 


The   German  Bundesrath.  23 

had  no  less  than  twenty-four  millions,  or  four-fifths  of  the 
whole  number.  The  other  fifth  was  divided  among 
twenty-one  States,  of  which  one  only,  the  Kingdom  of  Sax- 
ony, had  a  larger  population  than  the  city  of  Berlin  (then 
702,000).  Eight  of  the  proposed  members  had  less  than 
100,000  inhabitants  each.*  The  difficulties  of  the  situation 
were  appreciably  increased  by  the  necessity  of  considering, 
in  the  organization  of  the  union,  the  future  admission  of 
the  Southern  States.  Three  distinct,  and  in  many  respects 
conflicting,  forces  had  to  be  brought  into  harmonious  action. 
There  was,  in  the  first  place,  the  Kingdom  of  Prussia,  one 
of  the  great  European  powers,  conscious  of  a  glorious  past, 
strong  in  present  victory,  with  possessions  comprising 
almost  thirteen-fifteenths  of  the  whole  territory  embraced 
in  the  plan  of  union;  in  truth,  a  most  unmanageable  mem- 
ber for  a  federation  like  our  own.  It  seemed  destined  to 
occupy  a  dictatorial  position  in  any  possible  form  of  union. 
The  second  element  to  be  considered  was  the  particularistic 
or  monarchical  power  in  the  remaining  twenty-one  coun- 
tries. These,  as  we  have  seen,  were,  in  general,  very 
limited  in  extent.  Had  one,  at  this  time,  traveled  in  a 
straight  line  from  Fulda  to  Altenburg,  a  distance  of  some 
one  hundred  and  twenty-five  English  miles,  he  would  have 
found  himself,  on  the  way,  in  the  dominions  of  nine  sov 
ereign  and  independent  monarchs,  and  have  crossed  thirty- 
four  boundary  lines.  Insignificant  and  scattered  possessions 
do  not,  however,  necessarily  imply  moderate  pretensions. 
Each  of  these  States  possessed  a  long  recognized  sovereignty 
not  inferior,  from  a  legal  standpoint,  to  that  of  Prussia 
itself.  And  in  spite  of  the  efforts  of  the  educated  classes  in 
behalf  of  unity,  these  minor  governments  seem  in  general 
to  have  enjoyed  a  high  degree  of  popularity  among  their 
subjects.f  Lastly,  the  force  of  public  opinion  had  to  be 

*For  these  particulars,  I  rely  on  Haenel,  Organ.  Enttoicklung., 
p.  9. 

f  See  Sybel's  speech  in  the  Reichstag,  1867.  Bezold:  Materialien  der 
deutschen  Reichsverfassung,  I.,  583. 


•2'-  The   German  Bundesratl. 

considered  in  the  new  order.  This  took  the  form  of  a 
demand  for  liberal  institutions  and  a  united  Germany.  On 
examining  the  North  German  Constitution  we  find  each  of 
these  three  forces  assigned  an  appropriate  organ.  The 
presidency  of  the  Federation  (Bimdesprasidium)  is  united 
forever  in  a  personal  union  with  the  crown  of  Prussia.  In 
the  Bundesrath  the  princes  of  the  various  confederated 
states  represent  collectively  the  whole  power  of  the  federal 
state.  In  the  Reichstag,  a  representation  of  the  German 
nation  as  a  whole  *  exerts,  as  in  the  individual  states,  a 
check  on  the  exercise  of  the  powers  of  government. 

As  has  already  been  pointed  out,  the  President  of  the 
Federation,  or,  as  he  is  now  called,  the  Emperor,  is  not 
properly  speaking  a  monarch,  for  the  chief  characteristics 
of  a  monarch  are  quite  wanting  in  his  case.  He  has,  for 
example,  no  veto,  but  must  promulgate  all  laws  which  are 
constitutionally  passed  by  the  Bundesrath  and  Eeichstag, 
whether  they  are  agreeable  to  him  or  not.  In  the  Bundes- 
rath, and  not  in  the  Emperor,  is  vested  the  supreme  power 
of  the  state.  "Where  powers,  lying  within  the  competence 
of  the  central  government,  are  not  explicitly  delegated  to 
other  factors  of  the  government,  there  is  always  a  presump- 
tion in  its  favor,  just  as  in  the  various  constitutional  mon- 
archies of  Germany  the  prejudice  is  in  favor  of  the  mon- 
arch. Among  the  writers  on  the  subject  complete  unani- 
mity prevails  in  denying  to  the  Emperor  the  title  of 
sovereign.^  The  explanation  for  this  lies  in  the  experience 

*  Die  Mitglieder  des  Reichstages  sind  Vertreter  des  gesaminten 
Volkes  und  an  Auftiagen  und  Instruktionen  nicht  gebunden.  (Cons., 
Art.  29.) 

f"In  der  Literatur  berrscht  dariiber  voiles  Einverstandniss,  dass 
rler  Kaiser  iiieht  Souverain  des  Reiches  1st ;  wernn  trotzdem  zahlreiche 
Sehriftsteller  das  Reich  als  einen  '  monarchischeu  Bundesstaat '  be- 
zeichnen  oder  ihm  einen  '  monarchischen '  Charakter,  eioe  '  inonarch- 
ische '  Spitz  zuschreiben,  so  wird  das  Wort  nisht  im  staatsrechtlichen 
Sinne  gebraucht,"  Laband,  I.  89,  note. 

The  old  Holy  Roman  Empire  was  legally  a  monarchy.     The  charac- 


The   German  Bundesrath.  25 

of  the  past.  In  1848-9  the  attempt  of  the  Frankfurt  con- 
vention to  make  of  Germany  a  constitutional  monarchy, 
signally  failed.  The  effort  of  Prussia  at  Erfurt  was  not 
more  successful,  although  the  title  of  Emperor  was  rejected 
and  a  college  of  princes  introduced.  The  essentials  of  a 
monarchy  were  retained,  and  in  spite  of  all  the  rights 
granted  to  the  German  princes,  they  became  subjects  of  the 
King  of  Prussia.*  During  the  debates  on  the  constitution 
in  the  North  German  Reichstag  of  1867,  Bismarck,  in  op- 
position to  a  motion  to  include  a  responsible  ministry  in 
the  new  system,  declared  that  this  could  only  take  place  if 
the  new  constitution  was  made  monarchial,  but  this  he  con- 
tinued, would  involve  the  mediatization  of  those  upon 
whom  the  monarchial  power  was  not  conferred.  "Such  a 
mediatization  has,  however,  been  neither  conceded  by  our 
allies  nor  aimed  at  by  us.  It  has  been  hinted  here  by 
some  that  this  could  be  carried  out  by  force,  by  others,  that 
it  would  to  a  certain  extent  come  of  itself  ....  We  do 
not,  however,  believe  this  to  be  true,  nor  do  we  expect 
that  any  considerable  number  of  the  German  princes  would 
exchange  their  places  for  that  of  an  English  peer."f  Not 
only  did  the  princes  themselves  strenuously  oppose  any- 
thing approaching  subjection  to  the  King  of  Prussia,  but 
their  subjects  exhibited  the  particularistic  tendencies  which 
Bismarck  declares  to  be  inherent  in  the  German  character.:}: 
Hence,  if  the  errors  of  the  past  attempts  at  reform  were  not 

ter  of  the  new  Empire  appears  in  the  title,  which  is  not  Emperor  of 
Germany,  but  German  Emperor,  thus  with  no  territorial  attribute. 
See  Zorn,  article  Kaiserthum,  in  Holzendorff's  Rechtslexicon  (1881),  II., 
426. 

*See  Sybel  in  the  Reichstag,  Bezold,  Materialien,  etc.,  i.,  582. 

f  Quoted  by  Busch  in  Unser  Reichskanzler,  i.,  59-60.  Something  in 
many  respects  resembling  the  present  Bundesrath  had  been  long  a 
cherished  scheme  of  Bismarck's,  as  a  motion  of  his  in  the  Erfurt  Par- 
liament of  1850  proves.  See  Martitz,  Betrachtungen,  etc.,  pp.  50-51. 

£See  Busch,  Unser  Reichskamler,  p.  61,  and  Sybel,  Begnindung  des 
Deutschen  Reiches,  II.,  334-5. 


•_M;  The   German  Bundesrath. 

to  be  repeated,  it  was  of  prime  necessity  that  the  self-esteem 
of  the  individual  states  as  such  should  be  taken  into  con- 
sideration in  framing  the  new  constitution.  The  members 
had  to  be  compensated  in  kind,  so  to  speak,  for  the  sacrifices 
of  individual  power.  The  past  furnished,  as  already  hinted, 
an  excellent  basis  on  which  to  found  an  institution  which 
would  realize  this  end.  Prussia  had  proposed  to  reform 
the  old  Confederation  by  increasing  the  competence  of  the 
«  central  power,  adding  a  representation  of  the  people,  and 
doing  away  with  the  requirement  of  unanimity,  thus,  as  it 
were,  building  around  the  old  Bundestag  or  Assembly  of 
the  Confederation.  The  realization  of  the  plan  was  of 
course  once  for  all  rendered  impossible  by  the  sudden 
demise  of  the  Bundestag  in  1866.  An  institution  closely 
resembling  it,  however,  in  many  respects,  immediately 
sprang  into  being  through  the  treaty  above  referred  to  of 
August  18,  1866,  for  the  commissioners  sent  by  the  various 
cabinets  during  the  winter  of  1866-67  to  deliberate  on  the 
draft  of  a  constitution,  composed  an  assembly  correspond- 
ing in  the  main  with  the  former  Bundestag,*  i.  e.,  a  con- 
gress of  the  plenipotentiaries  of  the  allied  governments 
voting  according  to  instructions.  This  developed  rapidly 
into  the  Bundesrath  of  to-day.  The  conduct  of  the  pro- 
ceedings was  naturally  assigned  to  Prussia,  and  the  King  of 
Prussia  invested  with  the  right  of  convoking  and  adjourn- 
ing the  Reichstay,  as  the  representative  assembly  was 
already  called.  The  relations  between  this  council  of 
plenipotentiaries  and  the  representatives  of  the  people,  con- 

*  Schulze,  Deut,  Staatsr.,  II.,  47.  A  precedent  for  the  Bundesrath 
is  to  be  found  even  in  the  oldest  constitution  of  the  Holy  Roman  Em- 
pire, such  is  the  continuity  of  German  constitutional  development. 
"Nur  mit  veranderten  Namen,"  Schulze  writes,  "ist  der  Bundesrath 
an  die  Stelle  des  ehemaligen  deutscheu  Rechstages  getreten.  Mag 
man  politische  jede  vergleichung  uuseres  Bundesrathes  mit  jenem  viel 
verspotteteu  Reichstag  von  Regensburg  zuriickweisen,  fur  die  Staats 
rechtliche  Koustruktiou  bietet  der&elbe  iiberraschende  analogien." 
Staatsr.  II.,  48. 


The   German  Bundesrath.  27 

yoked  early  in  1867,  are  an  exact  picture  of  those  which 
continue  to  exist  between  the  Bundesrath  and  Reichstag. 
The  constitution  was  dealt  with  exactly  as  a  bill  would  be 
to-day.  The  Bundesrath  (verbundete  Regierungen)  prepared 
the  draft  to  be  submitted  to  the  Reichstag.  This  was,  after 
certain  changes,  accepted  by  the  latter  body,  and  returned 
to  the  Bundesrath  for  its  final  acceptance.  "No  new  or- 
ganization was  demanded.  Already  existing  arrangements, 
at  once  the  natural  expression  of  prevailing  conditions  and 
the  reflection  of  historical  facts,  had  only  to  be  more  clearly 
defined  and  legally  fixed."* 

Although  the  Bundesrath  is  really  a  perpetuation  of  an 
institution  characteristic  of  a  loose  international  union,  we 
must  guard  against  the  inference  that  the  present  Empire  is 
to  be  classed  with  the  Confederation  of  1815.  The  Bundes- 
rath, unlike  its  progenitor,  is  not  the  single  organ  of  a  loose 
confederation  or  Staatenbund^  but  one  of  the  three  great 
organs  of  a  true  federation  or  Bundesstaat^  of  a  composite 
state  which,  in  contradistinction  to  its  predecessor,  possesses 
an  independent  power  of  legislation  and  administration  and 
a  recognized  sovereignty  over  its  members,  the  individual 
states.  This  putting  of  new  wine  into  old  bottles  might 
seem,  at  first  thought,  a  dangerous  experiment.  It  would 
appear  unlikely  that  an  assembly  organized  in  1815  in  ac- 
cordance with  Prince  Metternich's  ideas  of  government 
would  find  itself  at  home  in  the  radically  altered  surround- 
ings of  to-day.  Such  an  apprehension  would,  however, 
rest  solely  on  the  supposition  that  the  conditions  which  just- 
ified the  formation  of  a  body  like  the  old  Bundestag  no 

*  Laband,  Deut.  Staahr.,  I.,  216. 

fTbe  definition  of -the  words  Federation  and  Confederation  as  found 
iu  the  Federalist,  reflect  to  some  extent  the  peculiarities  of  our  own 
constitution,  and  are  not  precisely  equivalent  to  the  terms  Bundesstaat 
and  Staatenbund  as  usually  understood.  Still  it  seems  unnecessary  to 
introduce  new  terms,  as  the  existing  ones  may  easily  be  widened  to 
embrace  new  political  phenomena. 


28  The   German  Bundesrath. 

longer  existed  in  1867.  A  more  careful  consideration 
shows  that  this  supposition  is  not  borne  out  by  the  facts. 
All  contradiction  disappears  if  we  remember  that  every 
historical  federation  retains  in  its  various  members  political 
creations  belonging  to  an  antecedent  period;  for  should  the 
states  of  which  the  federation  is  formed  lose  their  identity, 
the  federation  would  merge  into  a  unitary  government, 

II 

The  Bundesrath  has,  as  Laband  has  clearly  pointed  out,  a 
double  nature,  corresponding  exactly  to  the  double  nature 
of  the  Federation.  It  "serves  partly  for  the  exercise  and 
assertion  of  the  membership  rights  of  the  individual  states, 
partly  as  an  organ  of  the  Empire ;  in  the  latter  capacity  as 
an  ideal  unity."*  Accepting  Laband's  distinction,  wa  shall 
treat  the  Bundesrath  first  in  its  federative  aspect,  and  sec- 
ondly as  an  organ  of  the  state. 

Without  attempting  to  decide  the  involved  question 
whether  or  no  the  states  of  a  federation  may  be  rightly 
termed  in  any  sense  sovereign,  certain  it  is  that  many  pow- 
ers appertaining  to  an  independent  state  are  sacrificed  on 
entering  a  union.  In  order  to  recompense  the  states  for 
this  loss,  as  well  as  to  insure  the  continuance  of  the  federa- 
tion, and  prevent  a  lapse  into  a  unitary  state,  we  find  in 
the  existing  examples  of  federations,  a  participation  of  the 
states,  as  such,  in  the  formation  of  the  governing  bodies. 
Of  this  our  Senate  affords  an  example  as  well  as  the  Swiss 
Stdnderath.^  Answering  a  similar  purpose,  but  differing 
radically  in  character  and  origin,  is  the  German  Bundes- 
rath. Here  we  find  the  states,  or  their  sovereigns  for  them, 
not  only  participating  in  the  government,  but  constituting 
in  their  totality  the  collective  sovereign  of  the  Empire. 

*  Laband,  Staatsrecht,  I.,  217. 

f  The  Staatenhaus  of  the  Frankfurt  Constitution  of  1849  was  a  sim- 
ilar institution.  Cf.  Schulze,  Deut.  Staatsr.,  II.,  46. 


The   German  Bundesrath. 


29 


Every  member  of  the  Federation  is  represented  in  this 
body,  but  only  members  have  any  right  to  share  in  its 
formation.  Alsace-Lorraine,  for  instance,  neither  has,  nor 
can  have,  a  vote  in  the  Bundesrath.  Its  exclusion  is  not 
due  to  any  difficulty  to  be  encountered  in  the  appointment 
and  instruction  of  plenipotentiaries,  but  to  the  fact  that  the 
territory  won  from  France  is  not  a  member  of  the  Union 
at  all,  but  a  province  of  the  Empire.  No  power  intervenes 
between  its  inhabitants  and  the  Empire.  It  is  not  a  state, 
but  resembles  very  closely  in  position  one  of  our  territories.* 
It  would  farther  be  out  of  all  accord  with  the  nature  of 
the  institution  to  receive  into  the  Bundesrath  representa- 
tives of  any  class  of  the  inhabitants,  or  to  admit  to  a  seat 
distinguished  individuals  or  the  mediatized  princes  who 
formerly  ruled  over  their  lands  as  monarchs. 

In  apportioning  the  votes  among  the  various  members, 
the  framers  of  the  constitution  simply  adopted  the  rule  of 
the  former  Plenum.f  In  this  way  the  endless  discussion 

*  Commissioners  are  however  appointed  by  the  government  of  Al- 
sace-Lorraine to  participate  in  the  deliberations,  but  not  in  the  deci- 
sions, of  the  Bundesrath.  (Law  of  July  4th,  1879.) 

f  The  following  is  a  comparison  between  the  Plenum  as  it  appeared 
in  the  Act  of  Confederation  in  1815,  and  the  existing  arrangement  of 
the  Bundesrath  : 


Excluded  from  the  new  Union. 

The  17  votes  of  Prussia  consist,  In 
addition  to  its  original  4,  of  those 
of  the  annexations  of  1866,  f.  e., 
Hannover  4,  Elec.  Hesse  3,  Hoi- 
stein  3,  Nassau  2,  and  Frank- 
furt 1. 


Annexed  to  Prussia,  1866. 


Annexed  to  Prussia,  1866. 


Annexed  to  Prussia.  1866. 
Excluded  iroin  the  new  Union. 


Annexed  to  Prussia,  1866. 


Plenum. 

B'rath. 

Austria  

4 

Prussia  

4 

17 

Kingdom  of  Saxony... 

4 

4 

Bavaria       

4 

6 

4 

Wiirtemberg  

4 

4 

Baden    

3 

3 

Electoral      Hesse      or 

3 

Grand-duchy  of  Hesse 

or  Hesse-Darmstadt. 

3 

3 

3 

3 

Brunswick  

2 

2 

Mecklenburg  -  Schwer- 

in  

2 

2 

2 

Suxe-Weiniar  ... 

1 

1 

30 


The   German  Bundesrath. 


which  any  attempt  at  a  new  distribution  would  inevitably 
have  entailed,  was  avoided.  The  long-established  system 
had  lost  the  arbitrariness  which  it  once  possessed,  and  be- 
come, as  it  were,  the  habit  of  the  nation.*  The  four  votes 
of  Prussia  were,  it  is  true,  more  than  quadrupled  by  the  an- 
nexations of  1866,  still  this  was  no  deviation  from  the  es- 
tablished principle.  Bavaria,  however,  retained  in  the 
empire  the  two  extra  votes  granted  her  in  the  Bundesrath 
of  the  Customs-Union,  and  occupies  thus  an  exceptional 
position. 

The  exercise  of  rights  left  by  the  Constitution  to  the  vari- 
ous members  is,  in  principle,  the  domestic  concern  of  each 
state,  and  so  determined  by  state  law.  A  complete  under- 
standing of  the  Bundesrath  is  therefore  impossible  without 
at  least  a  passing  notice  of  the  method  of  choosing  and 
instructing  the  plenipotentiaries  who  form  that  august 


Saxe-Gotha  

Plenum. 
1 

B'rath. 

>       , 

The  dying  out  of  the  Suxe-Gotha 

Saxe-Ooburg  

1 

1 

line  in  1825  caused  a  re-arrange- 

Saxe-Meiuingen   

1 

1 

ment  of  the  little  Thiiringian 
states,  from  which  the  present 
duchies  arose;  Altenburg  being 
the  former  Heldburghaugen  fam- 
ily. See  Meyer,  Deut.  titaalsr.,  90. 

Saxe-  Hel  db  u  rghausen  . 

1 

Saxe-Altenburg  

1 

Mecklenburg-Strelitz. 
(Holstein)  Oldenburg. 
Anhalt-Dessau  

1 
1  . 
1 

1 
1 

) 

Anhalt-Bernburg  
Anhalt-Cothen  

J 
1 

' 

United  in  1863,  and  now  known 
simply  as  Anhalt. 

Schwurzburg  -  Sonder- 
hausen  

1 

1 

Schwarzburg  -  Kudol- 
stadt  

1 

1 

Hohenzollern  -  Hechin- 
gen  

|1 

Hobenzollern-Sigmar- 
ingen  

1 

J 

tarily  with  the  Prussian  State  in 
1849. 

Liechtenstein  



Waldeck  

i 

1 

Reuss  (elder  line)  
Reuss  (younger  line).. 
Schaumberg-Lippe  
Lippe  

i 
i 
i 
i 

1 
1 
1 
1 

Free  City  of  Liibeck  .  . 
Free  City  ot  Frankfurt 

i 

i 

1 

Annexed  to  Prussia  186(5 

Free  City  of  Bremen.  . 
Free  City  of  Hamburg. 

i 
i 

1 
1 

69 

58 

*  See  Bismarck's  speech  in  Bezold,  1.  c.,  I.,  649. 


The   German  Bundesratlt.  31 

assembly.  But  here  arises  the  question,  are  the  states,  or 
their  monarchs  for  them,  represented  in  the  Bundesrath  ? 
On  this  point  the  German  jurists  are  not  at  one.  Meyer 
and  several  others  assert  that  "the  states  in  their  relations 
with  the  Empire,  as  in  the  case  of  the  earlier  confederation, 
are  represented  solely  in  and  through  the  person  of  their 
monarchs."*  They  therefore  deny  to  the  individual  states 
the  right  to  grant  to  the  representatives  of  the  people,  by 
constitutional  amendment,  any  participation  in  the  instruc- 
tion of  the  delegates  to  the  Bundesrath.f  This,  they  would 
consider  a  violation  of  the  imperial  law.  Still  they  admit 
that  the  princes  have  a  place  in  the  Bundesrath,  not  in  vir- 
tue of  a  personal  right,  but  only  as  head  and  representative 
of  their  states,  and  consequently  only  so  long  as  they  con- 
tinue in  possession  of  the  power  of  the  state.:}:  Laband,  on 
the  other  hand,  declares  the  members  of  the  union  to  be 
states  and  not  princes.  ilDas  Reich  ist  Jcein  Fiirstenbund 
sondern  ein  av.s  den  deutschen  Staaten  gebildeter  Staat."1 
The  prince  or  his  ministry  is  the  natural  representative 
of  the  state  in  its  relations  with  an  outside  power,  as  form- 
erly with  foreign  states,  so  now  with  respect  to  the  Empire. 
But  there  is  nothing  to  prevent  the  state  law  from  regu- 
lating the  conditions  under  which  the  instructions  are  given. § 
There  is  nothing  in  the  constitution  of  the  Empire,  either 
expressed  or  implied,  indicative  that  the  instruction  of  the 
plenipotentiaries  belongs  exclusively  to  the  monarch  or  his 

*  Meyer,  Staatsrecht,  p.  347. 

f  "  Da  aber  reichsverfassungsmassig  im  Bundesrath  nur  die  Regier- 
ungen  vertreten  sind,  so  darf  die  Instruction  landesgesetzlich  nicht 
Ton  einer  Zustirnmung  des  Landestages  abhangig  gemacht  werden. 
Meyer,  I.e.,  p.  355. 

J  Meyer,  StaaUrecht,  p.  347. 

|  Laband,  Deut.  Staatsrecht,  I.,  89. 

§  "  Die  Reichsverfassung  nortnirt  lediglich  die  Abstimmung  im  Bun- 
desrathe,  aber  mit  keinem  "Worte  die  Instruktionsertheilung  welche 
res  interna  jedes  einzelneu  Staates  ist.''  Laband,  1.  c.,  I.,  226. 


32  The   German  Bundesrath. 

ministry.  To  a  foreigner,  especially  to  an  American,  it  is 
hard  to  see  why  the  sovereign  should  be  any  freer  from  con- 
stitutional control  where  the  interests  of  the  state  as  a 
member  of  the  union  are  concerned,  than  in  internal  affairs. 
They  were  not  absolute  monarchs  who  confederated  in  1866, 
but  monarchs  limited  each  by  a  constitution.  Even  if  they 
and  not  the  states  be  represented  in  the  Bundesrath,  they 
are  not  freed  from  the  constraints  to  which  the  increasing 
self -consciousness  of  nations  has  seen  wise  to  submit  the  in- 
dividual ruler.  Inasmuch,  however,  as  nothing  happens 
in  the  German  states  without  the  monarch's  will,  it  is  highly 
improbable  that  any  law  will  be  passed  in  the  individual 
states,  granting  the  Landtag  or  assembly  of  representatives 
of  the  people,  a  voice  in  the  instruction  of  the  plenipoten- 
tiaries.* 

Although  an  assembly  of  instructed  representatives  of 
the  various  members,  the  Bundesrath  is  to  a  certain  extent 
a  deliberative  body.  This  arises  first  from  the  fact  that 
"instruction"  is  a  very  elastic  term,  comprehending  many 
degrees  of  explicitness.  "The  instructions  may  consist  in 
a  carte  blanche  or  in  the  most  minutely  detailed  course  of 
action,  or  even  in  the  requirement  that  the  representative 
must,  before  proceeding,  procure  a  special  indication  of  the 
wishes  of  his  government."f  It  thus  often  happens  that 
the  members  are  not  supplied  with  instructions  for  each 
particular  case,  but  within  certain  bounds  may  vote  ac- 
cording to  their  own  judgment.;}:  This  is  most  natural  in 
the  case  of  ministers  and  presidents  of  the  individual 

*  Laband  adds  most  characteristically:  "  Audi  ist  nicbt  zu  verkennen 
dass  auch  aus  anderen  politiscben  Grunden  ein  solches  Gesetz  ver- 
werflich  ware,  da  das  Volk  in  seiner  Gesammtheit  durcb  den  Reicbs- 
tag  eine  Vertretung  erhalten  hat  neben  welcher  die  Volksvertre- 
tuugen  der  einzelnen  Staaten  zuriicktreten  mussen."  Deut.  Staatsr., 
p.  227. 

fSee  Seydel,  Holzendorff  and  Brentano's  Jahrbuch,  III.,  277. 
J  Meyer.  Staatsr.,  p.  361. 


The   German  Bundesratl.  33 

cabinets,  who  frequently  undertake  the  task  of  representing 
their  states.  In  looking  over  the  names  for  1888  we  find 
the  cabinets  of  the  individual  states  largely  represented. 
From  Prussia,  besides  the  president  of  the  ministry,  the 
ministers  of  the  Interior,  of  War,  of  Finance,  etc.;  from 
Saxony,  ministers  of  the  Interior  and  of  Finance;  from 
Bavaria  the  same;  from  "Wiirtemberg,  the  president  of  the 
cabinet  and  the  minister  of  the  Interior.*  Thus  the 
Bundesrath  appears  not  so  much  in  the  light  of  a  diplomatic 
body  as  of  an  assembly  of  specialists.f  As  a  means  of 
communication  between  the  various  state  governments, 
nothing  could  be  more  convenient  and  effective.  Here  the 
leading  men  meet  together  and  consider  the  common  policy 
to  be  pursued.  The  process  of  instruction  may  easily  be 
reversed.  The  plenipotentiary  by  his  report  may  affect  the 
opinion  of  his  government,  of  which  he  is  often  an  im- 
portant member,  and  so  instruct  rather  than  receive  instruc- 
tion from  others.:}:  Still  it  is  always  the  will  of  the  state 
government  which  asserts  itself  in  the  vote.  The  member 
of  the  Bundesrath  is  never,  as  in  our  Senate,  a  representa- 
tive of  the  people  of  the  Empire,  but  of  his  state  govern- 
ment ;  his  is  not  the  voice  of  the  individual,  but  of  the 
state.  This  difference  is  well  expressed  by  Bismarck  in 
his  speech  of  April  19th,  1871.  After  referring  to  the 
proposed  Erfurt  Constitution  where  the  member  was  not 
bound  by  instructions,  but  voted  according  to  his  own  con- 
victions, he  continues,  "In  the  Bundesrath  the  votes  do  not 
weigh  so  lightly  ;  there  it  is  not  Freiherr  von  Friesen  who 
votes,  but  the  Kingdom  of  Saxony  through  him.  Accord- 
ing to  his  instructions,  he  deposits  a  vote  which  is  a  care- 

*See  Handbuch  fur  das  deutsche  Reich,  1888,  p.  4  ff.  Up  to  1880 
the  names  of  plenipotentiaries  are  to  be  found  in  the  Reichsgesetzblatt. 

\  uDer  Bundesrath  ist  kein  diplomatischer  Korper,  sondern  ein  sich 
aus  einer  Beihe  von  Fachmanner  zusammensetzendes  Collegium." 
Martitz,  Betrachtungen,  etc.,  p.  43. 

|  Laband,  I.,  231.  and  note  3 


34  The   German  Bundesrath. 

fill  distillation  of  all  the  forces  which  combine  to  form  the 
public  life  of  Saxony.  This  vote  is  the  diagonal  of  the 
political  forces  which  play  a  part  in  the  Saxon  state.  .  .  . 
Analogously  in  the  Hanse  towns,  in  the  republican  members, 
it  is  the  whole  weight  of  a  great,  rich,  powerful  and  intelli- 
gent commercial  city  which  is  represented  in  a  vote  of  the 
city  of  Hamburg  in  the  Bundesrath,  not  the  vote  of  a  citi- 
zen of  Hamburg  who  can  vote  this  way  or  that  according 
to  his  convictions.  The  vote  in  the  Bundesrath  should  corn- 
command  the  respect  due  to  the  whole  political  life  of  a 
member  of  the  Union." 

The  instruction  of  the  members  of  the  Bundesrath  is  the 
affair  of  the  individual  state  governments,  and  not  a  matter 
of  which  that  body  takes  cognizance.  In  seeming  contra- 
diction to  this  is  the  clause  in  the  Constitution,  "  Unrepre- 
sented and  uninstructed  votes  shall  not  be  counted."*  This 
is  not  to  be  taken  literally.  It  does  not  mean  that  this  is 
the  penalty  for  voting  without  instructions,  that  the  vote 
of  an  uninstructed  member  is  simply  neglected.f  Nothing 
could  be  farther  from  the  truth.  The  Bundesrath  has 
neither  the  duty  nor  the  right  to  investigate  the  nature  of 
the  plenipotentiaries'  instructions.  That  he  is  plenipoten- 
tiary suffices.  It  never  inquires  whether  a  member  is  vot- 
ing according  to  instructions,  and  it  would  have  no  influence 
on  the  validity  of  the  decision  if  it  should  be  afterwards 
discovered  that  all  the  members  had  voted  without,  or 
even  against,  their  instructions.  The  motives  are  no  more 
considered  in  the  Bundesrath  than  in  the  House  of  Kepre- 
sentatives.  The  impracticability  of  attempting  such  a 
supervision  and  the  paralyzing  effect  on  the  work  of  the 
assembly  is  too  obvious  to  need  farther  amplification. 
The  clause  of  the  Constitution  above  referred  to  means, 
first,  that  the  states  are  in  no  way  compelled  to  take  part 

*Eeiehsverfas8u?ig.,  Art  7.,  Tf  3. 

fSeydel,  Holzendorff  &  Brentano's  Jahrbuch,  III.,  277. 


Tke  German  Bundesrath.  35 

in  the  proceedings;*  and  that,  farther,  a  member  cannot 
demand  that  a  vote  be  deferred  because  he  has  no  instruc- 
tions.f  That  his  vote  corresponds  to  his  instructions,  the 
plenipotentiary  is  therefore  responsible  to  his  home  gov- 
ernment alone.  His  vote  is  in  every  case  unconditionally 
binding  on  the  state  he  represents. 

The  active  participation  of  the  individual  members  of 
the  Union  in  the  Bundesrath  is  not  confined,  as  a  clause 
in  the  Constitution  would  at  first  glance  seem  to  indicate, 
to  matters  affecting  their  own  state  directly  or  indirectly, 
but  extends  as  well  to  measures  which  relate  solely  to 
other  portions  of  the  Union.  The  Bundesrath  is  the  organ 
of  the  Empire  as  a  whole,  and  is  in  principle  concerned 
only  with  the  whole  even  where  but  a  portion  of  the  realm 
is  directly  affected.  The  clause  referred  to  reads,  "  In  the 
decision  upon  a  matter  which,  according  to  the  provisions  of 
this  Constitution,  is  not  common  to  the  whole  Empire,  only 
the  votes  of  those  states  shall  be  counted  to  which  the 
matter  is  common  (yemeinschaftlich)?^  This  refers  only  to 
the  Southern  States,  which  have  been  exempted  from  the 
action  of  the  federal  power  in  certain  departments.  They 
have  in  certain  respects,  remained  outside  the  Union,  so  to 
speak,  and  are  naturally  precluded  from  interfering  with 
matters  which  do  not  concern  them,  either  individually  or 
as  members  of  the  Union.  For  example,  the  votes  of  Ba- 
varia and  Wiirtemberg  are  not  taken  into  consideration  in 
decisions  touching  the  administration  of  the  imperial  post 

*  Dissenting  from  this  generally  accepted  opinion,  Zorn  claims  that 
"dauernde  Fernhaltungeines  Staatesvom  Bundesrath  wiirde  iiberdies 
wohl  die  Anwemiung  des  Artikel  19  der  Reichsverfassung  (Bundes- 
exekution)  zur  Folge  haben  miissen."  HolzendoriFs  Rechtslexikon, 
I.,  435. 

fLaband,  Deut.  Staatsr.,  I.,  222,  228-9.  Meyer,  Staatsr.,  355. 
Schulze,  Deut.  Staater.,  II.,  51. 

J  Art,  7,  ^  4. 


36  The   Q-erman  Bundesrath. 

and  telegraph,  nor  Baden's  in  matters  relating  to  the  beer 
and  brandy  excise.* 

We  now  turn  to  a  consideration  of  the  organization  of 
the  Bundesrath  as  a  portion  of  the  constitutional  mechanism 
of  the  Empire.  The  form  of  business  in  this  body  is  regu- 
lated to  a  certain  extent  by  the  Constitution,  more  specifi- 
cally by  the  Rules  of  Procedure. f  The  latter  has  not  the 
force  of  law,  and  may  be  altered  at  the  pleasure  of  the  as- 
sembly.^: 

The  Bundesrath  is  not  a  permanent  assembly  as  the 
former  Bundestag  was  in  theory,  and  the  old  Reichstag  of 
the  Holy  Roman  Empire  was  in  fact,  but  is  assembled  at 
least  yearly  by  the  emperor.  ||  It  is,  nevertheless,  distin- 
guished from  the  ordinary  parliamentary  assembly  by  the 
so-called  principle  of  continuity  (Kontinuitat),  which  links 
each  new  session  closely  to  the  last.  For,  in  contrast  to  the 
rules  of  the  Reichstag,  business  is  resumed  at  the  point 
where  it  was  broken  off  by  adjournment  at  the  close  of  the 
preceding  session. 

Although  the  Constitution  vests  the  power  of  summoning 
the  Bundesrath  in  the  emperor,  he  exercises  this  power 
only  under  important  limitations.  He  may  not  call  the 
Reichstag  together  without  at  the  same  time  summoning 
the  Bundesrath,  although  it  is  quite  allowable  and  custom- 
ary, especially  for  the  preparation  of  bills  to  be  laid  be- 
fore the  representatives  of  the  people,  to  convoke  the  Bun- 

*  Constitution  Arts.  35  and  52.  See  Laband,  Deut.  Staatsr.,  I.,  229- 
30.  Meyer,  Staatsr.,  359. 

f  Geschaftsordnung  fiir  den  Buudesrath  ;  printed  1871  at  the  Kong- 
lichen  Geheimen  Ober-Hofbuchdruckerei,  Berlin,  18  pp.  Revised 
1880.  There  is  a  good  account  of  the  contents  in  Laband,  I.,  252  ff. 
The  writer  was  unable  to  gain  access  to  the  original,  either  at  the 
Royal  Library  or  at  the  Reichstag  Library. 

t  Laband,  1.  c.,  I.,  252. 

II  Schulze,  Deut.  Staatsr.,  II.,  64-5,  and  Cons.,  Art.  13. 


T/te   German  Bundesratl .  37 

desrath  alone.*  Moreover,  the  Emperor  is  bound  to 
assemble  the  Bundesrath  if  one-third  of  the  votes,  that  is 
twenty,  are  in  favor  of  it.f 

Each  session  falls,  for  convenience,  into  two  periods. 
The  important  work,  where  the  presence  of  the  chief  pleni- 
potentiary of  the  larger  states  is  requisite,  is  condensed  into 
as  short  a  space  of  time  as  possible;  the  remainder  of  the 
session  being  devoted  to  the  transaction  of  the  less  important 
business.:}:  Thus  the  leading  statesmen  are  relieved,  and 
their  term  of  attendance  shortened.  When  we  recollect 
that  these  men  play  the  chief  role  in  the  administration  of 
their  respective  states,  in  addition  to  their  duties  in  the 
direction  of  the  federal  affairs,  the  necessity  of  this  arrange- 
ment is  obvious. 

The  conduct  of  the  business  devolves  upon  the  Imperial 
Chancellor,  who  is  designated  by  the  Constitution  as  Presi- 
dent of  the  Bundesrath.  During  the  session  he  appoints 
the  time  of  meeting,  and  opens  the  sittings;  all  communi- 
cations from  the  Reichstag,  the  motions  of  the  individual 
members  of  the  Union,  and  all  petitions  directed  to  the 
Bundesrath,  pass  through  his  hands.  Such  petitions  as 
clearly  do  not  fall  within  the  sphere  of  the  assembly  he 
may  reject  without  farther  formality.  That  only  a  pleni- 
potentiary of  Prussia  may  be  appointed  to  this  position  is 
generally  admitted.  Hence  there  are  vested  necessarily 

*  Cons..  Art.  13.     James,  German  Constitution,  p.  24. 

f  Cons.,  Art.  14.     James,  German  Constitution,  p.  24. 

J  Laband,  Staatsreeht,  I.,  256. 

|  Meyer,  1.  c.,  p.  357,  note  7;  Haenel  1.  c.,  II.,  24  ff.  That  the  Chan- 
cellor must  be  a  member  of  the  Bundesrath,  the  wording  of  the  Con- 
stitution (Art.  15)  clearly  implies,  inasmuch  as  it  provides  for  the 
appointment  of  any  other  member  (;'jedes  andere  Mitglied")  of  that 
body  as  a  temporary  substitute  for  the  Chancellor.  That  no  other 
member  than  a  Prussian  plenipotentiary  may  be  appointed  is  dcduci- 
ble  from  the  circumstance  that  the  appointment  and  dismissal  of  the 
Chancellor  are  vested  solely  in  the  Emperor.  Should  he  select  any 
other  than  one  of  his  own  representatives,  that  plenipotentiary  might 


38  The   German   Bundesrath. 

in  a  single  person  the  important  functions  appertaining  to- 
the  Chancellor  or  chief  administrative  officer  of  the  Empire, 
to  the  President  of  the  Bundesrath,  and  lastly  to  the  lea.l- 
ing  representative  of  Prussia,  a  state  to  which  is  allotted 
not  only  nearly  one-third  of  the  votes  in  every  decision  and 
the  determining  voice  in  the  case  of  an  equal  division,  but 
in  several  important  matters  an  absolute  veto.  Whatever 
judgment  we  may  pass  on  this  peculiar  arrangement,  by 
which  the  head  of  the  Executive  Department  is  at  the 
same  time  the  most  important  member  of  the  chief  legisla- 
tive assembly,  it  must  not  be  forgotten  that  we  are  dealing 
with  a  set  of  conditions  and  political  traditions  wholly  dif- 
ferent from  those  of  our  country.  Two  things  should  be 
noted.  First,  the  principle  of  the  division  of  powers  has 
not  the  absolute  validity  which  would  make  its  strict 
application  possible.  Even  in  the  early  Constitution  of 
Massachusetts,  where  this  principle  appears  among  the  ina- 
lienable rights  of  man,  the  executive  was  not  refused  all 
influence  on  the  legislation.  In  the  second  place,  the  posi- 
tion occupied  by  the  minister  of  the  Emperor  is  precisely 
parallel  to  that  occupied  by  the  Emperor  himself.  .As 
Prussia  and  the  Empire  are  joined  in  a  personal  union,  so 
the  office  of  Imperial  Chancellor  and  th^at  of  the  Prussian 
Representative  in  the  councils  of  the  Federation  are  united 
in  the  same  individual. 

The  number  which  shall  constitute  a  quorum  in  the  Bun- 
desrath is  determined  neither  by  the  Constitution  nor  by 
the  Rules  of  Procedure.  Although  each  member  of  the 
Union  may  send  as  many  representatives  as  it  has  votes,  its- 
influence  in  deciding  a  question  is  in  no  way  connected 
with  the  number  of  its  plenipotentiaries  present.  One  is 

at  any  time  be  recalled  by  the  monarch  lie  represented  in  the  Bundes- 
rath, and  thus  without  being  dismissed  by  the  Emperor  lose  the  c< in- 
stitutional qualification  for  the  Chancellorship.  See  Laband,  1.  c.,  I  , 
351.  There  is  an  interesting  historical  argument  in  llaenel,  1.  c.,  II., 
28  f. 


The   German  Bundesrath.  #i> 

quite  sufficient  to  cast  the  votes  of  his  state,  which  can  not 
be  cast  otherwise  than  as  a  whole.  It  would  be  out  of  ac- 
cord not  only  with  the  theory  of  the  Constitution,  for  a 
state  or  monarch  cannot  have  two  wills  at  the  same  instant, 
but  with  its  express  provisions  as  well,*  if  the  votes  were 
disposed  singly. 

According  to  the  reports  of  the  sittings,  the  number  at- 
tending is  very  much  below  the  possible  fifty-eight,  one  or 
two  only  being  present  from  the  larger  states,  while  in  the 
case  of  the  smaller  ones  a  single  representative  (Stell- 
vertreter)  is  chosen  to  act  for  several  conjointly.f 

In  general,  a  simple  majority  is  the  only  condition  for 
the  passage  of  a  measure.  In  case  of  a  tie,  the  decision  is 
in  favor  of  the  side  on  which  Prussia's  votes  have  been  cast. 
The  exceptions  to  this  rule  are  enumerated  below.  It  is 
striking  that  in  those  cases  where  more  than  a  simple  ma- 
jority is  demanded  for  the  passage  of  a  measure,  this  limi- 
tation never  extends  to  the  Keichstag.  Here  a  plurality  of 
the  votes  is  the  only  condition  for  the  passage  of  every 
species  of  bill. 

I.  Amendments  to  the  Constitution  are  looked  upon  as 
rejected  if  there  be  fourteen  votes  against  the  change.  The 
history  of  this  apparently  arbitrary  provision  is  as  follows: 
According  to  the  North  German  Constitution,  a  two-thirds 
majority  of  the  Bundesrath  was  necessary  for  the  alteration 
of  the  fundamental  law.  This,  on  the  admission  of  the 

*  Art.  6.     James,  German  Constitution,  p.  21. 

f  Cf.  Laband,  I.,  223.  While  each  little  state  generally  appoints  a 
plenipotentiary  of  its  own,  it  has  at  the  same  time  a  substitute  (Stell- 
vertreter)  in  common  with  one  or  more  other  states.  So  in  1888  the 
Plenipotentiary  of  the  two  Mecklenburgs  was  also  representative  of 
Reuss  a  L.  and  of  Schaumberg-Lippe,  while  the  Vertreter  of  Sachsen- 
Weimar  was  appointed  to  the  same  oilice  by  Sachsen-Altenburg,  Co- 
burg-Gotha,  Schwarzburg-S.,  Schwarzburg-R.  (no  other  representa- 
tive) and  Reuss  j.  L.  [Haudbuch  fiir  das  Deutsche  Reich,  1888.] 
Presumably  the  title  "  Plenipotentiary  "  is  simply  honorary,  the  \'tr~ 
treter  doing  all  the  work. 


40  Tlie   German  B  unties  rath. 

Southern  States,  bad  to  be  altered;  for  otherwise  Prussia, 
whose  seventeen  votes  do  not  constitute  a  third  of  the 
present  number,  would  have  been  deprived  of  its  control, 
and  left  to  the  mercy  of  the  other  states.  The  requirement 
of  three  fourths,  which  was  accepted  in  the  treaty  with 
Baden  and  Hesse,  and  which,  expressed  in  the  present  nega- 
tive fashion,  would  have  rendered  the  modification  of  the 
Constitution  impossible  in  the  face  of  an  opposition  which 
could  muster  fifteen  votes,  gave  way  to  the  existing  provi- 
sion as  a  compromise  with  Bavaria.  Prussia  is  obviously 
the  only  State  which  can,  without  the  co-operation  of  any 
other,  prevent  a  widening  of  the  powers  of  the  central 
government,*  but  there  are  quite  a  variety  of  combinations 
by  which  four  of  the  lesser  states  can  accomplish  the  same 
end.  Even  three  may  do  so,  namely,  Bavaria,  Saxony  and 
Wiirtemberg. 

II.  In  certain  cases  no  alteration  of  the  existing  law  can 
take  place  unless  Prussia's  votes  be  with  the  majority  in 
favor  of  the  change.     This  the  German  jurists  chose  to  re- 
gard not  as  a  veto,  but  as  a  deviation  from  the  rule  which 
prescribes  a  simple  majority.     Comprised  in  the  class  re- 
ferred to  are  changes  in  the  military  or  naval  arrange- 
ments and  in  the  regulations  concerning  the  customs  duiic.s 
and  taxes  on  certain  specified  articles."- 

III.  In   regard  to  the  reserved  rights  of  the  Southern 
States  it  is  provided  in  the  Constitution  that  no  modifica- 
tion of  these  may  take  place  without  the  consent  of  the 
State  concerned.f     The  required  consent  is  looked  upon  as 

*  From  the  point  of  view  of  the  sovereignty  of  the  Empire  the  ex- 
ceptional position  of  Prussia  ofl'ers  a  strange  anomaly.     "  Man  kann 
daher  nnr    bedingt   von    einer    ideellen    Machtvollkommenheit    des 
Reiches  gegeniiber  den  Einzelstaateu  sprechen,  da  cine  Aenderung  der 
VerfMSUng  gegeu  den  "VYilkn  des  einzigeu  Partikular&taates  Prens.--oii 
vollstandig  ausgeschlossen  erscheint."      Eiimeliu  :   Zeitsch.  fur  Gcs- 
ammt  Staatmissenscftaft.     Bd.  XXXIX.  S.  !:•'.). 

*  Cons.,  Art.  35.     James,  German  Cons.,  p.  27. 

f  Cons.,  Art.  78.     There  is  no  corresponding  clause  in  the  Constitu- 
tion of  the  North  German  Federation. 


TJie   German  Bundesrath.  41 

given  if  the  vote  of  the  State  in  question  be  cast  in  the 
Bundesrath  in  favor  of  the  alteration.  The  question  what 
the  consent  of  the  privileged  member  involves  or  may  in- 
volve farther  than  the  vote  of  the  plenipotentiary,  has  been 
a  subject  of  discussion  in  Germany.  The  views  of  jurists  are 
divergent,  but  it  is  generally  held  that  even  if  the  acquies- 
cence of  the  Landtag  is  not  required  by  the  imperial  law, 
as  some  claim,*  the  consent  of  the  representatives  of  the 
people  may  be  made  requisite  by  a  law  of  the  state  itself. 
In  spite  of  the  efforts,  however,  to  restrict  in  this  manner 
the  power  of  the  monarch  to  surrender  the  peculiar  advan- 
tages of  the  state,  no  bill  imposing  such  a  limitation  has 
ever  been  passed  even  in  the  Landtag  itself,  not  to  speak  of 
receiving  the  assent  of  the  ruler.f 

IV.  Finally,  a  simple  majority  of  the  Bundesrath  is  not 
sufficient  where  a  dissolution  of  the  Reichstag  is  involved. 
For  this  the  consent  of  the  Emperor  is  necessary,  in  addi- 
tion to  that  of  the  Allied  Cabinets.;}: 

The  Bundesrath,  like  other  legislative  bodies,  relies  on 
committees  for  assistance  in  the  performance  of  its  func- 
tions. The  organization  of  these  is  not  left,  as  is  usual,  to 
the  discretion  of  the  Plenum  or  assembly  as  a  whole,  but  is 
carefully  defined  by  the  Constitution  (Art.  8).  Seven  per- 
manent committees  are  enumerated,  and  their  composition 
and  appointment  more  or  less  completely  provided  for.  la 
each  of  these,  besides  Prussia,  at  least  four  members  of  the 
Union  are  to  be  represented,  each  state  having  but  one 
vote.  The  Emperor,  as  cornmander-in  chief  of  the  land 
and  sea  forces,  appoints  the  members  of  the  Committee  on 
the  Army,!  and  that  on  the  Marine,  the  members  of  the 

*  Georg  Meyer  for  instance.     Staatsr.,  481. 

f  Cf.  references  iu  Meyer,  481,  note  25,  and  Laband,  1.  c.,  115-6,  and 
notes.  For  a  history  of  the  attempts  to  legislate  on  the  subject,  see 
Seydel ;  Commentar,  276  ff. 

\  Cons.,  Art.  24.     James,  German  Constitution,  p.  26. 

|  In  the  case  of  the  Army  Committee,  the  Constitution  provides 


42  The   German  Bundesrath. 

other  five  are  designated  by  the  Bundesrath  itself.*  On 
these  devolve  respectively  the  consideration  of  matters  per- 
taining to  the  customs  and  federal  taxes,  trade  and  com- 
merce, railroad,  post  and  telegraph,  justice,  and,  lastly,f 
finance  (Rechnungswesen).  The  duties  of  the  committees 
are  generally  confined  to  the  preparation  of  bills  for  the 
Plenum.  They  may  not  transact  business  themselves  nor 
issue  orders,  but  simply  report  to  .the  main  assembly. 

An  eighth  committee  provided  for  by  the  Constitution 
occupies  a  peculiar  position.  It  consists  of  the  plenipoten- 
tiaries of  the  kingdoms  of  Bavaria,  Saxony,  and  Wiirtem- 
berg,  and  two  other  members  of  the  Bundesrath  ap- 
pointed by  that  body.  This  is  the  Committee  on  Foreign 
Affairs.  It  has  in  practice  failed  to  take  the  important 
place  for  which  it  might  seem  destined,  and  is  chiefly 
interesting  as  an  illustration  of  the  underlying  principles  of 
the  German  Constitution.  One  of  the  most  important  ser- 
vices of  the  Bundesrath  is,  as  we  have  seen,  that  it  furnishes 
a  means  of  intercommunication  between  the  individual 
cabinets.  Opinions  are  there  exchanged,  purposes  dis- 
closed, and  misunderstandings  avoided.  The  political  en- 
ergy of  the  different  states  is  in  this  way  correlated  and  a 
general  unity  of  action  insured:  all  of  which  is  much 
more  essential  in  a  federal  system  like  that  of  the  German 
Empire  than  in  one  like  our  own.  In  the  United  States 
.  the  individual  state  does  not,  as  such,  participate  directly 
in  the  conduct  of  the  affairs  of  the  E'ederation,  whereas  in 

that  Bavaria  shall  always  be  represented.  The  same  privilege  is  in- 
sured to  Wiirtemberg  and  Saxony  by  Military  Convention. 

*  The  Bundesrath  satisfies  itself  with  indicating  the  states  which 
are  to  be  represented  in  the  committee,  and  dues  not  appoint  the 
members  themselves  directly.  This  is  not  in  accord  with  the  Consti- 
tution, Art.  8.  See  Haenel,  II.,  30,  and  Laband,  I.,  264,  and  note  2. 

f  Three  more  permanent  Committees  have  been  established  since 
the  formation  of  the  Constitution,  namely,  that  for  Alsace-Lorraine, 
one  on  the  Constitution,  and  one  on  the  Form  of  Procedure.  See  on 
tin.1  whole  subject  the  excellent  account  in  Labaud,  I.,  261-9. 


The   German  Bundesrath.  43 

•Germany  the  weightiest  functions  of  the  federal  govern- 
ment devolve  upon  the  state  governments.  Not  only  do 
they  as  a  whole  form  the  most  important  organ  of  the  cen- 
tral  government,  but  to  them  individually  is  intrusted,  as  a 
rule,  the  execution  of  the  federal  laws  in  their  respective 
territories.  The  committee  just  mentioned  is  a  part  of  this 
system  of  correspondence.  It  has  nothing  to  do  with  the 
instruction  of  diplomatic  agents,  or  with  the  conclusion  of 
treaties  and  conventions  with  foreign  nations,  nor  even 
with  the  preparation  of  bills  for  the  Bundesrath.  It  is 
there  solely  for  the  purpose  of  receiving  communications 
regarding  foreign  affairs,  which  are  in  this  manner  brought 
before  the  ministers  of  the  chief  states,  who  consult  on 
the  ends  to  be  pursued  and  the  means  best  adapted  to  reach 
these  ends.  In  this  committee  alone  Prussia  is  not  repre- 
sented, for  the  obvious  reason  that  the  Emperor,  to  whom 
falls  the  direction  of  the  foreign  policy  of  the  country,  is 
.necessarily  the  source  of  the  information  of  which  the 
•committee  is  the  recipient.* 

III. 

We  have  thus  far  directed  our  attention  to  the  historical 
development,  the  nature,  composition  and  organization  of 
the  Bundesrath;  it  remains  to  consider  its  functions  as  an 
organ  of  the  central  government.  So  soon  as  the  plenipo- 
tentiary has  cast  his  vote,  this  loses  its  previous  connection 


*Tliis  committee  was  not  among  those  founded  by  the  Constitution 
of  the  North  German  Federation,  but  was  established  by  the  treaty 
between  this  Union  and  Bavaria  (Nov.  23,  1870),  evidently  as  a  con- 
cession to  the  three  kingdoms  which  were  to  compose  it  for  their 
diminished  international  importance.  Of  the  significance  of  .this  com- 
mittee, Delbriick  said  in  the  Reichstag,  1870:  "  Er  wild  seinerseits 
Kenntniss  von  der  Lage  der  Dinge  nehnien  und  wild  in  der  Lage  sein, 
durch  diese  Kenutniss,  durch  Antriige,  die  er  an  den  Buudesrath 
stellt,  durch  Bemerkungun,  die  er  dem  Presidium  macht,  auf  die  Be- 
handlung  der  Politik  Eiuttuss  auszuiiben.''  Quoted  by  Seydel,  Cotu- 
mentar.,  p.  110. 


44  The   German  Bundesrath. 

with,  and  dependence  upon  the  individual  state.  It  passes-- 
from  the  sphere  of  state  law  to  that  of  federal  law,  and 
becomes  a  factor  in  the  determination  which  the  Bundes- 
rath  reaches  as  a  unit.  Hence  the  decisions  of  this  body 
do  not  assume  the  form  of  an  agreement  between  the  indi- 
vidual cabinets  or  a  majority  of  them,  but  are  an  expres- 
sion of  the  will  of  a  simple  organ  of  government.  The 
activity  of  the  Bundesrath  is  confined  to  no  single  one  of 
the  departments  of  government,  for  it  exercises  at  once 
legislative,  administrative  and  judicial  functions.  These 
we  shall  consider  in  the  order  enumerated. 

I.  The  Bundesrath  is  pre-eminently  a  legislative  body. 
Its  other  functions  are,  when  compared  with  its  part  in 
making  the  imperial  laws,  of  subordinate  importance  only. 
The  Constitution  provides  that  the  legislative  power  of  the 
Empire  shall  be  exercised  by  the  Bundesrath  and  the 
Reichstag,  and  that  the  agreement  of  the  majority  of  both 
the  assemblies  shall  be  requisite  and  sufficient  for  the  en- 
actment of  a  law  *  The  legal  equality  of  the  two  assem- 
blies in  respect  to  legislation  would  thus  appear  to  be  es- 
tablished. We  are  indeed  very  apt  to  class  Germany  with 
the  countries  which  have  adopted  the  bicameral  system, 
and  to  see  in  the  Bundesrath  and  Reichstag  the  upper  and 
lower  houses  so  universally  encountered  in  the  existing 
constitutional  organizations  of  Europe  and  America.  This 
is,  however,  a  mistake.  The  Bundesrath  is  not  an  upper 
house  in  the  ordinary  acceptance  of  the  term,  although,  as 
Bismarck  has  said,  it  performs  in  a  degree  the  functions  of 
one.f  We  have  already  dwelt  on  its  peculiar  composition. 

*  "  Die  Reichsgesetzgebung  wird  ausgeubt  durch  den  Bundesrath 
und  den  Reichstag.  Die  Uebereiiistimmung  der  Mehrheitsbeschluss 
beider  Versammlungeu  1st  zu  einem  Reichsgesetze  erforderlich  und 
ausreichend."  Cons.,  Art.  5.  James,  German  Cons.,  p.  21. 

f  During  the  discussion  of  the  Constitution,  Bismarck  made  the  fol- 
lowing significant  declaration:  "  Es  ist  mir  an  und  fiir  sich  nicht 
leicht,  mir  eiu  deutsches  Oberhaus  zu  denken,  das  man  einschieben 


The   German  Bundesratli.  45 

We  have  found  it  in  no  sense  a  representation  of  any  class 
of  the  nation,  and  formally,  at  least,  in  no  sense  a  delibera- 
tive assembly.  The  Reichstag  alone  in  the  imperial  con- 
stitution possesses  the  attributes  of  a  representative,  delib- 
erative body.  But  while  foreign  analogies  are  misleading, 
within  the  bounds  of  the  Empire  itself,  we  find  a  highly 
satisfactory  archetype  of  the  relation  existing  between 
Bundesrath  and  Reichstag,  namely,  that  which  has,  since 
the  introduction  of  constitutional  government,  existed  in 

kounte  zwischen  den  Bundesrath,  der,  ich  wiederhole  es,  vollkora- 
nien  noentbehrlich  ist,  als  diejenige  Stelle,  wo  die  Souveranetat  der 
Elnzelstaaten  tbrtfiihrt  ihren  Ausdruck  zu  findcn — das  man  also 
einschieben  konnte,  zwischen  diesem  Bundesrath  und  diesem  Reich- 
stage,  ein  Mitglied.  welches  dera  Reichstage  in  seiner  Bedeutung  anf 
der  soeialen  Stul'enleiter  einigermassen  uberlegeu  wiire,  und  dem  Bun- 
desrathe  und  dessen  Vollmaehtgebern  hinreichend  nachstunde,  inn 
die  Classification  zu  reclitfertigen.  Wir  wurden  in  der  Versaramlung 
nicht  souverane  Pairs,  Mitglicder  haben,  die  ihrenseits  geneigt  sind,  zu 
rivalisiren  mit  den  mindermaehtigen  Souveriiuen  in  ihrer  socialen 
Stellnng.  Der  Bundesrath  repiiisentirt  bis  zu  einem  gewissen  Grade 
eiu  Oberliaus,  in  welehem  Se.  Majestiit  von  Preussen  primus  inter 
pares  ist,  und  in  welchem  derjenige  Ueberrest  des  hohen  deutschen 
Adels,  der  seine  Landeshoheit  bewahrt  hat.  seinen  Platz  findet. 
Dieses  Obeiliaus  nuu  dadurch  zu  vervollstandigen,  dass  man  ihm 
nicht  souverane  Mitglieder  beifiigt  lialte  ich  praktisch  fur  zu 
schwierig,  um  die  Ausfiihrung  zu  versuchen.  Dieses  souverane 
Oberliaus  aber  in  seinen  Bestandttheilen  ausserhalb  des  Prasidiums  sa 
weit  berunterzinlruckeu,  dass  es  einer  Pairskamriier  ahnlich  wiirde, 
die  von  unten  vervullstandigt  werden  konnte,  halte  ich  fur  unmoglich 
und  ich  wiirde  niemals  wagen,  das  einem  Herrn  gegenuber.  wie  der 
Konig  von  Sachsen  ist,  auch  nur  anzudeuten.  Der  haupt*aehliche 
Grund  aber.  warum  wir  keineTheilung  des  Reichstags  ia  zwei  Iliiuser 
vorgeschlagcn  liaben,  liegt  immer  in  der  zu  staiken  Complieirnng 
der  .Maschine.  Die  Gesetzgebuug  des  Bundes  kann  schou  durch 
einen  anhaltenden  Widerspruch  zwisclien  dem  Bundesrathe  und  dem 
Reichstage  zum  Stillstand  gebracht  werden,  wie  das  in  jedem  Zwei- 
kammersystem  der  Fall  ist;  aberbei  einer  Dreikammersystem — wenn 
ich  einmal  den  Bundesrath  als  Kammer  bezeichnen  darf— wurde  die 
Moglichkeit,  die  Wahrscheinlichkeit  dieses  Stillstandes  noch  viel 
naher  liegen,  \\\v  wiirden  zu  schweriiillig  werden."  Sten.  Ber.,  S.  430. 
Quoted  by  Seydel,  Comm.,  99. 


46  The   German  Bundesrath. 

the  individual  German  states  between  the  monarch  and  his 
Cabinet  on  the  one  hand  and  the  Parliament  or  Landtag 
on  the  other.* 

In  tracing  the  history  of  a  law  through  its  several  stages, 
the  divergence  of  the  German  system  from  the  prevailing 
type  of  constitutional  government  becomes  even  more  appa- 
rent. We  find  that  the  Bundesrath  and  Reichstag  are  not 
even  legally  on  the  same  footing  in  the  execution  of  their 
common  task  of  legislation,  and  that  in  practice  the  pre- 
eminence of  the  former  body  is  assured,  not  only  by  its  in-* 
herent  nature,  but  by  deep-rooted  tradition.  First,  as  to 
the  inception  of  a  bill,  the  Constitution  provides  that  both 
bodies  may  propose  bills,  f  and  thus  places  the  two  on  an 
equality  in  respect  to  the  initiative.  Neither  is  limited 
to  a  simple  veto,  nor  forced  to  accept  or  reject  a  proposed 
law  as  a  whole.  There  is,  in  short,  no  legal  necessity  why 
a  bill  should  originate,  as  it  usually  does,  in  the  Bundes- 
rath. The  Reichstag,  however,  looks  to  the  Bundesrath  to 
take  the  lead  in  proposing  measures,  directing  a  petition  to 
that  body  if  necessary,  respectfully  asking  that  it  formulate 
a  bill  in  accordance  with  its  sentiments  and  submit  it  to 
the  consideration  of  the  representatives  of  the  people. 
This  is  easily  explained.  The  initiative  in  the  German 
states  was,  until  comparatively  recently,  confined  to  the 
monarch  acting  through  his  cabinet;  for  the  proposing  of 
laws  on  the  part  of  the  Landtag  was  held  to  be  out  of  har- 
mony with  the  monarchical  principle.:}:  It  was  thus  not 
only  expedient,  but  absolutely  necessary,  if  the  people  de- 
sired any  particular  form  of  legislation,  that  they  petition 
the  monarch  to  lay  a  bill  before  them.  This  tradition  no 

*  "Dem  Reichstage  gegenuber  niramt  der  | Bundesrath  niclit  die 
Stelle  eiues  zweiten  Factors  der  Representation  (einer  ersten  Kammer 
oder  eines  Oberhauses),  sondern  diejenige  Stellung  ein,  welche  in 
constitutionellen  Staaten  die  Regierung  besitzt."  Meyer  I.  c.,  351. 

f  Art.  7  and  23.     Cf.  Laband,  I.,  534. 

%  Meyer,  Staatsrecht.,  463. 


The   German  Bundesrath.  47 

doubt  lingers  in  the  minds  of  members  of  the  Eeichstag,  each 
one  seeing  in  the  Bundesrath  the  person  of  the  monarch  of 
whom  he  is  a  subject,  and  the  wisdom  of  the  leaders  of  his 
own  state  government.  This  is  illustrated  by  the  fact  that 
the  Reichstag  addresses  the  assembly  associated  with  it  in 
legislation  not  as  the  Bundesrath,  but  as  the  "  Verb'dndete 
Reyierunyen"  or,  as  we  may  roughly  translate  it,  allied 
cabinets. 

As  one  enters  the  assembly  hall  of  the  Reichstag  at 
Berlin,  he  is  immediately  struck  by  a  double  row  of  ele- 
vated seats,  reaching  across  the  end  of  the  apartment  on 
either  side  of  the  president's  chair.  These  are  the  places 
reserved  for  the  members  of  the  Bundesrath,  who,  the  Con- 
stitution provides,*  may  appear  in  the  Reichstag  to  repre- 
sent the  views  of  their  respective  governments,  and  must 
be  heard  at  any  time  upon  request.  Not  only  do  the 
Rules  of  Procedure  of  the  Reichstag  provide  for  this  emer- 
gency, but  they  go  so  far  as  to  lay  down  the  rule  that,  after 
the  discussion  of  any  point  is  regularly  closed,  it  must  be 
considered  as  reopened  if  a  member  of  the  Bundesrath 
asks  to  speak  upon  the  matter,  f  The  practice  has  not  un- 
naturally grown  up  in  the  Bundesrath  of  informing  the 
Reichstag,  during  the  discussion  of  important  bills,  of  the 
character  of  the  amendments  which  will  be  acceded  to  by 
the  Bundesrath.;}:  The  preparation  of  bills,  the  formula- 
tion of  their  contents  and  the  statement  of  motives,  al- 
though not  so  provided  for  by  law,  falls  to  the  Imperial 
Chancellor  and  the  high  government  officials  under  his 

*  Art.  9.  Jedes  Mitglied  des  Bundesrathes  hat  das  Recht,  irn  Reichs- 
tage  zu  erscheinen  und  muss  daselbst  auf  Verlangen  jederzeit  gehort 
werden,  urn  die  Ansiehten  seiner  Regierung  zu  vertreten. 

f  Geschaftsordnung,  §  48.  "  Nimmt  ein  Vertreterdes  Bunderathes 
naoh  dem  Schlusse  der  Diskiission  das  Wort,  so  gilt  diese  aufs  neu  fur 
eroffnet." 

\  See  Labaud  I.,  537,  note  5. 


4:8  Tlie   German  Bandcsrath. 

control.*  It  is  thus  apparent  that,  while  the  Reichstag  is 
legally  quite  free  to  exercise  its  power  of  initiative,  the 
preponderance  of  the  Bundesrath  is  not  only  indicated  by 
the  provisions  of  the  Constitution,  but  confirmed  by  prac- 
tice. In  the  final  stage  of  the  law  making,  however,  in  the 
so-called  Sanction,  the  ascendency  of  this  body  appears 
even  more  clearly. 

Every  law,  we  find  on  analysis,  to  consist  of  at  least  two 
easily  distinguishable  elements,  the  rules  or  provisions  of 
which  the  bill  consisted  before  it  became  a  law  ;  secondly, 
the  command  or  order  which  renders  the  observance  of 
these  rules  incumbent  upon  the  citizen.  The  latter  element, 
or  that  which  converts  a  bill  into  a  law,  is  the  Sanction.  It 
is  obvious  that  the  rules,  which  form  the  content  of  a  law, 
may  be  derived  from  many  sources.  They  may  be  suggested 
by  a  minister,  by  a  committee,  or  even  indirectly  by  some- 
one wholly  outside  the  government  organization.  The 
specific  effect  of  the  power  of  the  state  appears,  not  in  the 
formulation  of  the  bill,  but  in  the  sanction  alone,  in  the 
binding  force  which  it  may  bestow  upon  any  rule  of  conduct 
by  which  that  rule  is  made  law.f  In  the  individual  mem- 
bers of  the  Empire  the  monarch  is  invested  with  the 
supreme  power  of  the  state,  and,  although  he  is  not  free  to 
determine  the  character  of  a  law  without  the  cooperation 
of  the  representatives  of  the  people,  he  alone  can  convert 
a  bill  into  a  law.  The  question  presents  itself,  to  which 
of  the  organs  of  the  imperial  government  does  this 
exalted  prerogative  belong  ?  The  answer  would  seem  to 
be  at  hand.  All  the  imperial  laws  begin  with  the 
formula,  "We  .  .  .  by  the  Grace  of  God  German  Emperor, 
King  of  Prussia  &c.,  ordain  herewith  the  following."  The 
power  of  sanction  seems  thus  to  be  assumed  by  the  Em- 
peror. But  this  formula,  taken  as  it  is  from  the  Prussian 


*  Labaud,  I,  533. 

|  This  subject  is  treated  with  great  care  in  Laband,  515  ff. 


The   German  Bundesrath.  49 

constitution,  is  not  applicable  to  the  Empire.  The  authori- 
ties on  the  subject  agree  that  the  supposition  that  the  power 
of  sanction  is  vested  in  the  Emperor  is  neither  in  harmony 
with  the  theory  of  the  Constitution  nor  with  its  specific 
provisions.  For  the  right  to  exercise  this  power  implie8 
the  right  to  refuse  to  exercise  it  at  will.  The  obverse  side 
of  the  sanction  is  the  absolute  veto.  As  we  have  seen,  the 
monarchs  of  the  individual  German  states  possess  both  these 
powers;  strictly  speaking  both  aspects  of  the  single  power 
of  sanction  are  apparent  in  their  case.  The  Emperor,  how- 
ever, has  no  veto.  The  Constitution  says  explicitely  that 
the  agreement  of  the  two  assemblies  is  sufficient  for  the 
creation  of  a  law.  The  Emperor  must  publish  all  laws 
constitutionally  passed,  whether  he  be  in  accord  with  their 
provisions  or  no.  The  article  which  gives  him,  as  King  of 
Prussia,  a  veto  in  the  Bundesrath  on  proposed  changes  in 
the  military  arrangements,  would  be  without  significance 
if,  as  Emperor,  he  possessed  this  power  in  all  cases.  It  is 
the  Bundesrath,  not  the  Emperor,  who  sanctions  the  laws.* 
That  this  is  entirely  in  harmony  with  the  principles  on 
which  that  institution  is  based,  as  developed  in  the  preced- 
ing pages,  is  obvious.f  The  sanction  of  the  Bundesrath 
may  appear  as  a  separate  act  or  in  conjunction  with,  and 
indistinguishable  from,  the  simple  approval  of  the  contents 
of  a  bill.  The  Constitution  makes  it  necessary  that  every 
decision  of  the  Keichstag  shall  be  acted  upon  by  the  Bund- 

*  Laband,  542,  aud  note  1  ;  Haenel,  II.,  52;  Meyer,  472;  Sclmlze, 
II.,  118. 

f  See  Laband,  541  :  "  Tiiiger  der  souveranen  Reiehsgewalt  ist  die 
Gesammtheit  der  deutschen  Staaten,  als  ideolle  Einhuit  gedacbt.  Nur 
von  ihr  kann  daher  der  eigentliche  Gesetzgebungsact,  die  Sanction  der 
Reichsgesetze  ausgehen.  Die  Gesammtheit  der  deutsclien  Landesher- 
ren  und  freien  Stadte  ertheilt  den  Entwiirfen  zu  Reichsgesetzen  die 
Sanction,  welclie  sie  in  Reichsgesetze  umwandelt.  In  alien  Fallen 
aber,  in  denen  die  deutschen  Bnndesglieder  ihren  Antheil  an  der 
Reicbsgewalt  auszuiiben  haben,  ist  der  Bundesrath  das  dafur  verfas- 
sungsniassig  bcstimmte  Organ,  nicht  der  Kaiser." 


50  The   German  Bundesrath. 

esrath,  even  if  it  be  the  acceptance,  as  a  ichole  and  unchanged, 
of  a  bill  or  iy  matin  <j  in  the  Bundesrath  itself*  The  Bundes- 
rath  might  legally  refuse  its  assent,  just  as  the  monarchs  of 
the  various  members  of  the  union  may,  even  to  a  bill 
which  it  had  itself  formulated.  In  this  second  acceptance 
of  its  own  approved  measures  we  have  the  sanction  of  the 
Bundesrath  distinctly  separated  from  the  other  aspects  of 
its  legislative  activity.  The  analogy  of  the  position  it  oc- 
cupies to  that  of  the  individual  German  monarchs  is  clear, 
for  the  Bundesrath  has  a  veto  as  well  as  they.  It  is  always 
legally  possible  for  it  to  refuse  its  assent  at  the  last  moment 
to  every  bill.  The  act  of  sanction  is  not,  however,  men- 
tioned explicitly  in  the  Constitution,  and  politically  it  is 
almost  wholly  devoid  of  significance.  It  is,  nevertheless,  of 
no  little  importance  from  a  legal  and  theoretical  stand  point, 
to  determine  who  is  the  real  law-giver  of  the  Empire. 

But  the  legislative  activity  of  the  Bundesrath  is  not  lim- 
ited to  the  laws  passed  in  conjuction  with  the  Reichstag. 
Very  important  measures  may  take  the  form  of  ordinances, 
issued  by  the  Bundesrath  alone.  The  ordinances  i'all  into 
two  distinct  classes,  which  must  be  carefully  distinguished. 
They  may,  on  the  one  hand,  be  simple  administrative  meas- 
ures affecting  the  government  officials  only.  Those  to 
whom  they  are  directed  are  bound  to  obey  them,  not  as 
subjects  of  the  Empire,  but  as  employees  of  the  government. 
These  administrative  ordinances  will  be  again  referred  to  in 
connection  with  the  administrative  functions  of  the  Bundes- 
rath. In  sharp  contrast  to  these,  are  those  which  modify  or 
supplement  the  law  of  the  land,  and  bind  the  subject  as 
such.  These  are  in  their  nature  legislative  enactments,  and 
differ  from  an  ordinary  law  in  their  origin  only.  They 
want  the  usual  qualification  of  a  law,  inasmuch  as  they  are 
created  without  the  concurrence  of  the  representatives  of 
the  people.  This  is  obviously  a  grave  defect,  so  grave  as 

*  Meyer,  472,  aud  note  3.     Laband,  512. 


The   German  Bu.ndesratli.  51 

to  make  a  legislative  ordinance  a  complete  anomaly  in  a 
constitutional  system  based  on  the  division  of  powers. 
For,  however  free  the  administration  may  be  to  conduct  it? 
own  affairs,  it  must  act  in  a  constitutional  system  within  the 
bounds  of  the  law.  The  laws  must,  however,  according  to 
the  modern  ideas  of  government,  be  made  with  the  concur- 
rence of  the  people,  acting  through  their  representatives — 
this  in  Germany  as  well  as  elsewhere—hence,  any  diver- 
gence from  this  rule  must  have  strong  legal  justification. 
The  German  Imperial  Constitution  grants  no  general  power 
to  any  of  the  organs  of  the  state  to  enact  laws  under  the  form 
of  ordinances,*  but  on  the  contrary  says  explicitly  that  the 

*  Art.  7,  2,  of  the  Constitution  reads,  "  Der  Bundesrath  beschliesst 
.  .  .  iiber  die  zur  Ausfuhrung  der  Reichsgesetze  erforderlicheu  all- 
gtmeinen  Verwaltmigsvorschrifteu  und  Einrichtungen,  sofern  nicht 
durch  Reichsgesetz  etwas  anderesbestinimt  ist."  This  clause  is  sub- 
ject to  various  constructions.  Does  it  give  the  Bundesrath  any  right 
to  issue  legiuln-tite  ordinances  ?  If  so,  to  what  extent  ?  Meyer  claims 
that  the  article  does  not  refer  simply  to  administrative  ordinances,  but 
that  the  '•  An*fii}irnngsrerordnungen'>'  may  be,  although  rarely,  legis- 
lative ordinances  (p.  485,  and  note  12,  also  p.  4(36,  and  note  8).  Loen- 
ing  (Verwaltungsreehr,  p.  229)  says,  "  Sofern  die  Unterthaueiiaberdie 
Gesetze  auszul'iihren  habcn,  konnen  durch  Verordnung  auch  Vorschrif- 
tcn  iiber  die  Art  und  Weise  der  Ausfuhrung  an  sie  gerichtet  werdeu." 
This  species  of  ordinance  would  be  a  law  according  to  Laband,  and 
could  not  legally  be  Issued  under  Art.  7,  2.  Laband's  narrower 
construction  of  the  clause  in  question  is  very  fully  and  ably  supported 
in  his  great  work,  I.,  595,  flf.  In  controverting  Arudt  (  Verordnungs- 
rccJii  des  deutschen  Reickes.  Berlin  and  Leipzig,  1884)  he  sums  up  their 
points  of  difference  as.  follows  :  "  Arndt  erkeunt  aber  .  .  .  dass  die 
Verordnnngen  des  Bundesrathes  sich  intra  legem  halteu  miissen,  d.  h. 
nur  zur  Ausfuhrnriy  dues  Reichsgesetzes  dieuen  durfen,  und  dass  die 
Befugniss  des  Bundesrathes  stets  auf  eine  Delegation  zurfickzufuiiren 
sei.  Nur  halt  er  nicht  eine  specielle  Delegation  in  dem  einzelnen  Gesetze 
lur  erforderlich  sondcrn  er  erblickt  in  dem  Art.  7,  Abs.  2  der  Reichs- 
verfassung  eine  generdle  Ermiichtigung  auch  zum  Erlass  von  Rechts- 
vorschriften.  Da  es  nun  iiblich  gewonlen  ist,  in  alien  Reichsgesetzen 
die  dazu  irgend  Yeranlassung  geben,  specielle  Errmichtiguugen  zum 
Erlass  von  Ausl'iihrungsvorschriften  zu  ertheilen,  so  ist  die  praktische 
Differenz  zwischen  der  von  Arndt  verfochtenen  Lehre  und  der  hior 
vertheidigten,  nicht  so  bedeutend,  als  es  vielleicht  den  Anschcin  hat" 


52  The   German  Bundesrath. 

legislative  functions  shall  be  exercised  by  the  Bundesrath 
and  Keichstag,  and  that  the  assent  of  both  bodies  shall  be 
requisite  to  the  passage  of  a  law.  Even  the  power  of  enact- 
ing temporary  laws  in  special  emergencies,  when  the  ordi- 
nary legislative  bodies  are  not  in  session,  a  power  commonly 
exercised  by  the  monarch  of  the  individual  German  state, 
is  unknown  to  the  Empire.*  These  general  provisions  do 
not,  however,  prevent  a  delegation  on  the  part  of  the  usual 
factors  of  legislation  of  a  specified  portion  of  their  power  to 
other  organs  of  the  Government — to  the  Bundesrath,  the 
Emperor,  the  Imperial  Chancellor,  or  even  to  the  individ- 
ual state  administration.  Such  a  delegation,  although 
quite  foreign  to  our  conceptions  of  the  nature  of  constitu- 
tional restrictions,  is  not  only  recognized  by  the  eminent 
authorities  of  Germany,  but  is,  as  we  shall  see,  sanctioned 
by  a  long  series  of  precedents  of  unquestionable  legal 
validity.!  The  laws  which  contain  delegations  of  this  char- 
acter usually  designate  the  organ  which  shall  exercise  the 
power;  if  not,  the  duty  devolves  upon  the  Bundesrath. :{: 
The  law-making,  which  takes  the  form  of  ordinances,  is 

(p.  596,  note  4).  The  Bundesrath  has,  however,  exercised  its  power 
of  issuing  ordinances  with  a  freedom  which  does  not  appear  to  be  jus- 
tified by  the  Constitution.  Both  Arndt  and  Haenel  (IL,  80-81)  have 
brought  together  a  number  of  instances  of  this  character.  Laband, 
•while  rejecting  many  of  the  cases  as  beside  the  point,  admits  that  the 
remainder  prove,  "dass  die  Praxis  eine  schwankende  und  der  Bundes- 
rath nicht  in  alien  Fallen  der  ihm  durch  die  Verfassung  gezogenen 
Schranken  sich  klar  bewusst  gewesen  ist"  (p.  599). 

*  Meyer,  pp.  469  and  486,  and  Schulze,  §§188  and  288.  "  Nach 
TJeichsstaatsrecht  mussen,  wie  Laband  sagt,  alle  Gesetze  im  materiel- 
len  Sinne  auch  Gesetze  ira  formellen  Sinne  sein."  Schulze,  II.,  p.  123. 

f'Ein  Gesetz  kann  demnach  anstatt  unmittelbar  Rechtsregeln  auf- 
zustellen,  Anorduungen  daruber  enthalten  wie  gewisse  Kechtsregelu 
erlassen  werden  sollen.  .  .  .  Eine  vielfach  bethiitigte  Praxis  deren 
Rechtsmassigkeit  niemals  wecler  vom  lleichstage  noch  vom  Bundes- 
rathe  oder  der  lieichsregierung  angezweifelt  wordeu  ist,  hat  diesor 
Auffassung  augeschlossen."  Laband,  p.  600, 

\  Meyer,  p.  485.     Laband,  p.  GUO,  note  4. 


Ihe   German  Bundesrath.  53 

generally,  if  not  always,  a  sort  of  secondary  legislation  that 
fills  in  the  details  of  laws  of  whicl}  the  general  character 
has  been  already  determined  by  the  joint  action  of  the  two 
assemblies.*  Within  the  limits  already  outlined,  the 
Bundesrath,  or  other  organ  of  state  to  which  the  power  is 
specifically  delegated,  proceeds  to  amplify  the  general  pro- 
visions by  a  process  which  Laband  compares  to  the  develop- 
ment of  a  sketch  into  a  painting.  Obviously  there  is 
scarcely  any  limit  to  the  extension  of  this  delegated  power, 
nor  to  the  importance  of  the  secondary  legislation  in  mod- 
ifying the  law  as  it  comes  from  the  representatives  of  the 
people;  in  other  words,  the  sketch  leaves  a  considerable  lat- 
itude for  the  coloring  and  chiaroscuro.  The  number  of 
laws  which  grant  the  power  of  secondary  legislation  to  the 
Bundesrath  is  considerable.  Ilaenel  mentions  thirty-five  in 
eleven  years.t  All  laws  relating  to  the  customs  and  taxes, 
and  most  of  those  affecting  the  financial  and  industrial  in- 
terests of  the  Empire,  are  of  this  class.* 

Properly  to  judge  this  system,  so  far  as  the  Bundesrath  is 
concerned,  two  tilings  must  be  kept  in  mind  ;  first,  the 
variety  of  functions  assumed  by  the  German  state,  and,  sec- 

*  For  example,  the  so-called  Dynamite  Law  of  1884  is  to  be  inappli- 
cable to  explosives  generally  used  for  ammunition.  The  law  does  not 
specify  what  shall  be  included  in  the  category  mentioned,  but  dele- 
gates the  determination  of  this  to  the  Bundesrath. 

f  Studien,  II.,  p.  85. 

|  Laband,  p.  601,  note  1.  The  delegated  power  of  issuing  ordinances 
may  be  more  or  less  limited.  Sometimes  a  law  provides  that  the  ordi- 
nances issued  in  accordance  with  its  provisions  must  receive  the  assent 
of  the  Reichstag.  In  other  cases,  they  must  be  submitted  to  the  Reichs- 
tag, which  is  at  liberty  to  demand  their  repeal.  Ordinances  of  the 
former  class  can  be  repealed  only  with  the  forms  of  law,  while  those  of 
the  second  category  may  be  revoked  by  the  power  issuing  them,  inde- 
pendently of  the  Reichstag.  (See  Meyer,  p.  486.)  The  right  to  issue 
ordinances  is  very  frequently  delegated  to  the  Emperor,  acting  either 
independently  or  with  the  knowledge  and  consent  of  the  Bundesrath. 
For  a  list  of  the  laws  containing  delegations  of  this  character  see 
Haenel,  II..  70-77. 


54  The   German  Bundesrath. 

ondly,  the  peculiar  character  of  the  Bundesrath  as  already 
described.  The  German  Constitution,  like  our  own,  has  a 
"  general  welfare  "  clause.  Everything,  however,  depends 
on  the  construction  put  upon  a  somewhat  vague  formula. 
It  is  unnecessary  to  say  that  views  prevail  in  the  Empire 
widely  divergent  from  those  traditional  in  the  United 
States.  "The  whole  activity  of  the  state,"  writes  an  emi- 
nent authority  on  German  administrative  law,  "has  for  its 
end  and  aim  the  promotion  and  development  of  the  na- 
tional civilization  and  culture."  *  This  is  not  too  broad  a 
statement  of  what  would  be  known  in  our  country  by  the 
question -begging  epithet,  "government  interference."  The 
administration  in  Germany  has  assumed  such  proportions 
as  to  give  rise  to  a  new  and  important  branch  of  public 
law.  The  field  is  thus  altogether  too  considerable  for  a 
popular  assembly,  consisting  even  of  the  best  qualified 
members,  to  be  able  in  every  case  to  formulate  a  law,  com- 
plete in  its  details  and  yet  adapted  to  the  exigencies  of  the 
occasion.  Obviously  those  called  upon  to  conduct  the  ad- 
ministration learn  better  than  any  one  else  the  rules  accord- 
ing to  which  it  is  most  expedient  to  act.  The  laws  which 
determine  the  limits  of  their  activity  must,  while  insuring 
the  rights  and  liberties  of  the  subject,  hamper  as  little  as  may 
be  the  administration  in  the  accomplishment  of  its  very 
comprehensive  ends.  The  representatives  of  the  people 
may  content  themselves  with  a  general  determination  of  the 
limits  of  a  series  of  legislative  measures,  leaving  the  details 
to  more  competent  hands,  the  Bundesrath  or  the  Emperor ; 
in  other  words  to  those  organs  of  state  which  conduct  the 
administration.  The  Bundesrath,  although  in  the  main  a 
legislative  body,  has,  as  we  shall  see,  important  administra- 
tive functions  as  well.  Not  only  this,  but  its  members  are 
as  we  have  noted,  the  heads  of  the  administration  in  the  in- 

*  "  Die  gesammte  Thiitigkeit  ties  Staates  hat  die  Forderung  der 
Kultureiitwickluug-des  Volkes  zura  Zweck."  Loaning,  Vencaltunys- 
recht,  p.  3. 


The   German  Bundesrath.  6-~> 

dividual  states,  men  versed  in  affairs,  specialists  qualified, 
if  any  one,  to  judge  of  the  form  a  law  may  best  take  in  or- 
der to  realize  its  ends.  Thus  a  power  which,  if  delegated 
by  our  Representatives  to  the  Senate,  would  be  at  once  un- 
constitutional and  inexpedient,  is  in  Germany,  owing  to  the 
complexity  of  the  functions  of  state  and  the  peculiarity  of 
the  chief  legislative  body,  both  in  accord  with  the  system 
and  necessary  to  its  success. 

The  Bundesrath  is  an  organ  of  the  administration,  but 
not  in  the  sense  that  it  may  interfere  directly,  through  spe- 
cific orders  addressed  to  the  government  officials.  On  the 
contrary,  the  actual  carrying  out  of  administrative  meas- 
ures devolves  either  upon  the  Emperor  or  his  representa- 
tives, or  falls  within  the  scope  of  the  self-administration  of 
the  individual  state  governments.*  The  term  administra- 
tion, is  not,  as  has  already  been  implied,  applicable  solely,  or 
even  chiefly,  to  the  simple  execution  of  the  laws.  It  is  a 
much  broader  word,  including  everything  which  remains, 
after  setting  aside  the  legislative  and  judicial  functions  of 
government. f  It  is  the  conduct  of  the  government  business 
in  a  country  where  nothing  is  foreign  to  the  sphere  of  gov- 
ernment regulation.  The  administration  may  not  only  do 
what  it  is  explicitly  empowered  to  do  by  law,  but  every- 
thing which  is  not  forbidden  by  law.:};  It  is  the  free  ac- 
tivity of  the  government  within  thebounds  of  law.|  The 
cases  in  which  the  Bundesrath  may  exercise  administrative 

*Laband,  I.,  p.  236.     Schulze  Deutsches  Stautsrecht,  II.,  p.  50. 

f  This  negative  definition  is  adopted  by  Meyer :  "  Unter  devBezeieb- 
nung  Verwallung  fasst  man  die  gesammte  Tbatigkeit  der  staatlicben 
Oigane  welche  nicbt  Gesetzgebung  uud  uicbt  Jnstiz  ist  zusammeu," 
p.  515. 

\  '•  Die  Verwaltung  ist  keine  blosse  Ausfiihrung  der  Gesetse  sonderu 
ein  Ilandeln  innerhnlb  der  gesetzlichen  Schranken.  Die  Verwaltnng 
darf  nicbt  bloss  dasjenige  tbun,  wozu  sie  durcb  Gesetz  ausdriicklicb 
ermacbtigt,  sondern  alles  was  ibr  nicbt  durch  Gesetz  untersagt  ist.'' 
Meyer,  p.  521. 

\  Tbe  precise  nature  of  the  administration  from  a  legal  and  pbilo- 


56.  The   German  Bundesrath. 

functions  may  be  altered  by  new  laws  from  year  to  year. 
There  are  thus  no  absolutely  determined  limits  to  its 
sphere  of  action,  deducible  from  the  condition  or  the  na- 
ture of  the  assembly  itself.  The  following  classification 
gives,  however,  a  very  just  view  of  the  range  of  its  ac- 
tivity.* 

According  to  the  express  provision  of  the  Constitution,f 
the  Bundesrath  decides  upon  the  general  administrative 
measures  and  arrangements  necessary  for  the  execution  of 
the  imperial  laws,  unless  that  function  be  delegated  by  law 
to  some  other  organ.  The  individual  laws  generally  pro- 
vide specifically  for  the  exercise  of  this  power,  and,  although 
often  delegating  it  to  the  Emperor,  his  minister,  or  the  state 
governments,  the  practice  has  been  to  leave  the  determina- 
tion of  the  general  rules  for  the  administration  to  the  Buu- 
desrath.ij:  This  class  of  ordinances  must,  of  course  be  distin- 
guished from  those  already  described,  which  are  really  laws 
in  the  form  of  ordinances. 

Farther,  the  Bundesrath  "  decides  upon  defects"  which 
may  appear  in  the  execution  of  the  imperial  laws  or  the  ad- 
ministrative measures  and  arrangements  mentioned  above. 
This  clause  is  very  awkwardly  expressed,  and  hence  diffi- 
cult to  construe,  but  it  is  at  least  obvious  that  the  Bundes- 

sophic  standpoint  is  the  subject  of  much  discussion  in  Germany. 
Laband's  plausible  theory  (Staatsrecht,  I.  pp.  671,  tt')  is  criticised  by 
Haeuel  iu  his  most  recent  ess-ay  Das  Gesetz  imformtllen  und  mater  it  l- 
len  Sinne,  (p.  81,  ff.)  The  best  kno\sn  general  tieatmeiits  of  the 
administrative  law  are  those  of  Prof.  Loening  of  Halle  (Dentschtx 
Verwaltungsrecht,  1  vol.),  and  of  Prof.  G.  Meyer  of  Heidelberg  (Deut. 
Verwaltunysrecht,  2  vols). 

*  For  this  classification  see  Laband  I.,  p.  236,  and  Schulze,  Dent. 
Staatsr.,  II.,  p.  56. 

f  Art.  7,  2.  Der  Buudesrath  beschliesst  .  .  .  iiber  die  zur  Ausfuh- 
rung  der  Keichsgesetze  erforderlicheu  allgeiueiuuu  Verwaltungsvoi- 
schriften  und  Eiurichtungen." 

}  Laband,  I.,  p.  237. 

1  Cons.,  Art.  7,  3.     James,  German  Cons.,  p.  22. 


The   German  Bvtuksratli.  57 

rath  is  not  to  "  decide  upon  the  defects,"  as  the  Constitution 
reads,  but  to  provide  for  their  remedy.  The  remedy  in 
case  of  a  law  which  proves  inapplicable  to  the  existing  con- 
ditions,  would,  of  course,  take  the  form  of  a  bill  to  be  laid 
before  the  Eeichstag  for  the  alteration  or  repeal  of  the 
undesirable  measure.  If  the  defect  were  confined  to  the 
administrative  ordinances  issued  by  the  Bundesrath  alone, 
it  could  alter  them  as  it  saw  fit.  There  is,  however,  a  far- 
ther signficance  in  the  clause,  which  may  be  inferred  from 
its  history.*  From  its  origin  it  is  clear  that  it  forms  the 
correlative  of  the  articlef  which  vests  in  the  Emperor  the 
duty  of  overseeing  the  execution  of  the  imperial  laws.  The 
Constitution,  in  defining  the  competence  of  the  Empire, 
(Art.  4),*  does  not,  as  might  be  expected,  designate  a  cer- 
tain number  of  departments  which  shall  fall  to  the  federal, 
as  distinguished  from  the  state  governments,  but  limits  the 
competence  of  the  federation,  in  the  first  instance  at  least,  to 
the  "oversight  and  legislation'1'1  in  the  matters  enumerated  in 
the  article.  This  is  very  striking.  Oversight  takes  prece- 
dence of  legislation.  Of  the  execution  of  the  laws  when 
made,  nothing  is  said.  The  execution  of  the  laws  made  by 
the  federal  government  is  left  to  the  states.  The  funda- 
mental difference  which  here  presents  itself  between  our 
system  and  the  German,  is  pertinently  expressed  in  the  defi- 
nition of  a  federative  government  which  a  recent  German 
writer  has  put  forth:  "//*,"  he  says,  " we  wish  to  gain  an 
accurate  conception  of  a  Federation  (Bundesstaat),  as  t/w- 
thi<juished,ontheonehandfroma  loose  Confederation  (Staat- 
enbund),  on  the  other  from  a  unitary  government,  we  must 
vest  in  the  unity  of  the  federated  states,  the  sovereignty,  and 
the  regulation  of  the  law.  The  final  exercise  of  the  sovereign 

*  Laband,  I.,  p.  138. 

f  Art.  17.     James,  German  Cons.,  p.  25. 

\  "  Der  Beaufsichtiguiig  seitens  des  Reiches  mid  der  Gesetzgebuug 
dcsselben  unterliegen  die  nach.stehenden  Angelegenlieiten." 


58  TJie   German  Bundesrath. 

power,  (hat  ts,  the  immediate  execution  of  the  functions  of  the 
state,  must,  however,  in  order  to  maintain  the  existence  of  the 
individual  states,  be  vested  in  the  said  states,  tinder  the  over- 
sight of  the  Union.*  This  definition,  while  adapting  itself 
to  the  German  Empire,  obviously  excludes  our  own  Union 
altogether.  Its  significance  lies,  however,  not  in  its  general 
applicability,  but  in  its  reflection  of  the  underlying  charac- 
teristics of  the  government  we  are  considering.  The  Em- 
pire is  sovereign.  Many  functions  of  the  state  are  specifi- 
cally subject  to  its  legislation,  and  it  may  increase  the  field 
of  its  legislative  activity,  virtually  almost  at  will.  On  the 
other  hand,  the  individual  state,  within  the  bounds  described 
by  the  Empire,  may  carry  out  the  laws  in  accordance  with 
its  traditions,  adapting  the  mode  of  execution  to  the  local 
peculiarities  of  its  situation.f  It  is  the  right  and  the  duty 
of  the  federal  government  always  to  have  a  thorough 
•knowledge  of  the  manner  in  which  its  administrative  bodies 
conduct  their  business.";}:  To  the  end  that  it  may  satisfy 
itself  that  the  state  governments  are  fulfilling  their  consti- 
utional  duties,  the  right  of  oversight  is  given  it.  It  is  the 
Emperor's  duty  to  appoint  such  officials  as  are  requisite 
for  collecting  the  necessary  information.!  Any  reported 
cases  of  imperfect  execution  of  the  federal  laws  are  laid 
before  the  Bundesrath  for  consideration.  The  Bundesrath, 
therefore,  decides  upon  the  proper  interpretation  and  appli- 
cation of  the  laws,  so  far  as  it  is  necessary,  in  order  to  obvi- 

*Rumeliu:  "Das  Beaufsichtignngsrecht  des  deutschen  Reiclis." 
Zeitschrift  fur  die  gesammte  Staatswissenschaft.  (1883.)  Vol  39, 
p.  202. 

t  Rumelin,  1.  c.,  p.  211. 

.  I  Das  Reich  hat  vor  alleni  das  Redd  und  die  Ffi'-ftt  von  der  Ge- 
schaftsfuhrung  seiner  Verwaltungs-Korper  eine  eiiigehende  und  voll- 
knmmene  Keuutnihs  zu  nekrnen.  Rumelin,  1.  c.,  p.  21-3.  See  also 
Laband.  I.,  p.  703. 

\  The  Emperor  may  demand  reports  from  the  state  governments  on 
tlieir  method  of  conducting  the  administration  of  federal  laws.  La- 
band,  I.,  p.  707. 


The   German  Bundesrath.  59 

ate  the  concrete  difficulty  which  has  made  itself  apparent. 
"The  issue  of  orders  through  which  the  decision  of  the  Bun- 
desrath  is  executed  belongs,  however,  to  the  Emperor.* 
The  "  defects"  under  consideration  may  consist  in  an  erro- 
neous interpretation  of  the  Constitution,  the  laws,  or  the 
administrative  ordinances  of  the  Empire,  from  which  results 
a  wrong  application  of  their  provisions,  or  in  a  tardy  exe- 
cution, or  even  in  a  refusal  to  carry  out  the  laws  on  the  plea 
that  they  are  unconstitutional. f  This  important  function 
•of  the  Bundesrath  is  exercised,  it  must  be  remembered,  by 
the  leading  statesmen  of  the  individual  states,  who  conduct 
the  administration  at  home.  The  Bundesrath  cannot,  how- 
ever, annul  a  decision  of  the  state  officials,  nor  issue  any 
orders  to  the  said  officials.;};  Its  power  extends  no  farther 
lhan  determining  the  general  duty  of  all  the  states,  as  exem- 
plified by  the  decision  of  the  case  in  hand. 

The  farther  powers  of  the  Bundesrath  which  relate  to 
the  administration,  (such  as  the  influence  it  exercises  on  the 
nomination  of  certain  officials,!  as  well  as  the  part  it  plays 
in  the  determination  of  certain  peculiarly  important  mat- 
ters, such  as  the  declaration  of  war,§  the  conclusion  of 
treaties,^  the  dissolution  of  the  Reichstag,**  (where  the 
Emperor  may  act  only  with 'its  consent,)  inasmuch  as  they 
are  easily  assimilated  to  the  arrangements  existing  in  most 
constitutional  governments,  need  not  be  considered  here. 

The   so-called    "  Execution"   (Bundesexekutioti)    merits, 

*  See  Schulze,  II.,  pp.  5G  and  57.     Labaud,  I.,  p.  241. 

f  Thudiclium.     HoltzpndoriTs  Jahrbueli,  vol.  I.,  22,  note  2. 

\  "  Der  Bundesrath  bildet  keine  Instanz  iiber  den  Centralbehorden 
der  Einzelst-iau-n  so  dass  an  ihn  im  Wege  der  Beschwerde  oder  des 
Recurees  der  einzelne  Fall  znr  definitive!!  Entscheidung  gezogen  wer- 
•di'ii  konnte."  Laband,  I.,  242. 

||  For  the  list  see  Laband,  I.,  p.  243. 

§Cons.,  Art.  11,  1.     James,  German  Cons.,  p.  24. 

^  Cons.,  Art.  11,  2.    James,  German  Cons.,  p.  24. 

**0ons.,  Art.  24.     James,  German  Cons.,  p.  26. 


60  The   Gftrman  Bundesrath. 

however,  a  few  word?,  as  it  is  wholly  foreign  to  our  institu- 
tions. The  German  Constitution  provides  that  in  case  the 
members  of  the  union  do  not  fulfil  their  constitutional 
duties  toward  the  federation,  they  may  be  forced  to  per- 
form them  by  means  of  the  "execution,"  The  Bundesrath 
determines  upon  the  "execution,"  which  is  carried  out  by 
the  Emperor.  This  is  all  that  is  paid  on  the  subject,  and  it 
seems  at  first  sight  a  very  insufficient  treatment  of  so  im- 
portant a  matter  as  the  coercion  of  the  states,  the  pis-alhr 
in  a  federal  system.  This  simple  statement  takes  the  place 
of  a  more  extended  one  in  the  constitution  of  the  North 
German  Federation  of  1866,  which  in  its  turn  suggests  the 
elaborate  provisions  in  relation  to  the  "execution "contained 
in  the  fundamental  law  of  the  preceding  German  union.* 
The  diminished  clause  of  the  present  constitution  reflects,. 
to  some  degree  at  least,  the  changed  relations  of  the  federal 
members.  There  is,  perhaps,  an  unconscious  admission 
that  the  existing  distribution  of  power  is  more  potent  than 
legal  formulas.f  Naturally  an  execution  directed  against 
Prussia  is  out  of  the  question.  On  the  other  hand,  the  Em- 
peror, to  whom  two  million  soldiers  are  bound  by  oath  to- 
execute  unconditionally  his  commands,  will  scarcely  find 
himself  obliged  to  mobilize  a  single  regiment  to  carry  out 
the  decrees  of  the  Bundesrath.^ 

"  Ce  qu'vn  etranyer  comprend  avec  le  plus  de  pelne 
aux  Etats-Unis  test  V organization  judiciaire"  [  writes  De 
Tocqueville.  Similarly,  one  of  the  most  puzzling  depart- 
ments of  German  constitutional  law  for  us  is  that  which 
relates  to  the  Judiciary.  Our  supreme  and  inferior  courts 
play  such  an  important  constitutional  role  in  our  federal 


*  Wiener  Schlussakte  von  1820,  Arts.  31  and  34,    and  the  Exeku- 
tionsordnung,  1820. 
f  Seydel,  Comm.,  p.  138. 

I  Thudichum.     Holtzendorff's  Jahrbuch.     Vol.  I.,  p.  28,  note  1. 
|  Democratic  en  Ame'rique,  I.,  163. 


The    German  Bitndesrath.  til 

system  that  we  are  apt  to  infer  that  a  judicial  organization,, 
at  least  analogous  to  our  own,  is  a  necessity  of  every  federal 
government.  The  Imperial  Court  at  Leipzig,  however,  al- 
though a  court  of  last  resort,  exercises  no  influence  com- 
parable to  that  which  the  highest  tribunal  of  the  United 
States  exercises  on  the  development  of  the  constitutional 
law  of  the  union.*  The  attempts  which  have  Hot  been 
wanting  to  introduce  a  system  in  some  degree  resembling 
our  own,  have  failed.f  The  Reichsobergericht  is  not,  like 
the  Supreme  Court  at  Washington,  one  of  the  great  organs 
of  the  central  government,  included  in  and  forming  a  vital 
part  of  the  original  plan,  but  first  came  into  being  some 
years  after  the  formation  of  the  union.  \  But  who,  then, 
interprets  the  Constitution  ?  How  is  the  boundary  line 
separating  the  province  of  the  federation  from  that  of  its 
members,  defined  and  maintained  ?  To  answer  these  ques- 
tions a  long  excursus  would  be  necessary,  for  the  most  fun- 
damental differences  between  our  legal  traditions  and  those 
of  Germany  are  here  involved.  Suffice  it  to  say  that  the 
insignificant  role  played  by  the  Imperial  Court  in  the  form- 
ation of  the  constitutional  law  of  the  federation  is  attribu- 
table, mainly,  to  four  peculiarities  which  distinguish  the 
German  Union  from  our  own,  viz.,  the  long  established 
monarchical  institutions,  the  peculiar  composition  of  the 
Bundesrath,  the  facility  with  which  the  competence  of  the 
Empire  may  be  enlarged,  and,  lastly,  a  much  lower  estima- 
tion of  the  significance  of  judicial  decisions  in  comparison 

*  Schulze  observes  (Dent.  Staatsr..  II.,  59)  that  the  Courts  may 
decide  constitutional  points  incidentally.  The  insignificance  of  their 
decisions  in  this  re  pect  may  be  judged  by  the  fact  that  but  two  or 
three  cases  ure,  so  far  as  my  knowledge  extends,  ever  cited  as  shed- 
ding any  light  on  the  constitutional  law. 

f  The  constitutions  proposed  in  1848-9  contain  elaborate  provisions 
for  a  Supreme  Court,  although  differing  essentially  from  our  own. 
The  federal  jurisdiction  is,  for  example,  extended  to  constitutional 
difficulties  arising  in,  and  confined  to,  the  individual  states. 

J 1879. 


<>'2  TJie   German  Bundesrath. 

with    free    philosophical    reasoning     which     prevails    in 
Germany.* 

The  jurisdiction  in  constitutional  questions  is  not  dele- 
gated to  the  courts,  but,  so  far  as  it  is  provided  for  at  all,  it 
is  exercised  by  the  Bundesrath.  That  this  body,  whose 
members  vote  according  to  instructions,  is  as  ill  adapted  to 
perform  'judicial  functions  as  one  can  well  imagine,  is  clear.f 
Nevertheless,  by  general  consent,  the  Bundesrath  is  pitched 
upon  as  the  proper  organ  to  exercise  any  important 
function  which  seems  to  lie  outside  the  sphere  of  the 
other  constituted  powers.  Hence  it  acts  as  judge  when  no 
other  judge  is  forthcoming.  Something  has  been  said  al- 
ready of  the  judicial  activity  of  the  Bundesrath  in  its  decis- 
ions concerning  defects  -in  the  laws  or  their  administration. 
This  often  involves  an  interpretation  of  the  laws,  but 
rarely  does  their  determination  take  the  form  of  an  actual 

*The  following  quotations  show  the  strong  repugnance  which  is 
entertained  by  some  of  the  ablest  thinkers  in  Germany  towards  any 
interference  of  the  courts  in  cases  of  alleged  unconstitutional  action 
on  the  part  of  the  federation.  .  .  .  "  Es  rnusste  als  ein  gerade  zu  un- 
ertiaglieher  Zustaud  angesehen  wt-rdfii.  wemi  Gerichte  ein  ordimngs- 
niassig  verkundetes  Gesetz  bei  der  Eutscheidung  concrtjter  Rechtsfalle 
fur  nichtig  erachten,  wahrend  Kaiser,  Bundesrath  und  Reichstag  es 
als  verfassungKinassig  zu  Stande  gekuminen  aufrecht  erhalten" 
(Laband,  I.,  556,  note  1).  Haenel,  Laband  observes  farther  on,  "  or- 
blickt  gerade  in  dem  richterlichen  PrufuugSrecbt  der  Verfassungsmas- 
bigkeit  der  Reichsgesetze  eiiien  indiri'i'ten.  Rechtsschntz  tlen  Eiiizthtuutes 
gegen  rechtswidrige  Eiugi'iffe  des  Reiches  in  seine  Rechtsordnung. 
Die  Einzelstaaten  wiirden  inn  denselben  nicht  zu  bcneiden  seiu  ;  denn 
sie  konnten  in  die  eigenthumliche  Lagekommen,  dass  der  Bundesrath 
von  ihnen  die  Durchfuhruug  eines  Reichesgetezes  verlangtund  sie  mit 
Bundesexecution  bedroht,  wall  rend  die  Gerichtshofe  dasselbe  Reichs- 
gesetz  fur  nicht  nach  Massgabe  der  Reichsverfassung  erlassen  und 
deshalb  fur  unanwendbar  und  nichtig  erldaren  (558,  note  8).  Far- 
ther, see  Bismarck  on  the  interpretation  of  the  constitution  by  the 
courts,  quoted  in  Buseh,  Unser  Reichskanzler  L,  32.  Radically  differ- 
ent views  are  met  in  Haenel,  Studien,  I.,  Chap.  V.,  particularly  p. 
268  ;  also  Westerkamp,  Ueber  die  Iteichscerfitssung,  184,  ff.  Both  the 
latter  are  fatailiiir  with  our  institutions. 

t  Martitz,  1.  c.f  37. 


The   German  Bundesrath.  63 

decision  of  the  specific  case  which  gave  rise  to  the  discussion, 
as  tli at  may  have  been  determined  long  before.  The  deci- 
sion of  the  Bundesrath  serves  simply  as  a  guide  to  those  to 
whom  the  decision  of  the  case  in  question,  or  similar  cases, 
is  intrusted.*  In  a  few  instances,  however,  determined  by 
special  laws,  decisions  of  the  Bundesrath,  or  its  commit- 
mittees,  are  in  nature  precisely  those  of  an  administrative 
court ;  for  example,  deciding  whether,  and  to  what  extent, 
the  gates  of  a  fortress  may  be  widened  in  the  interest  of 
traffic. f  The  three  cases  particularly  enumerated  in  the 
Constitution,  in  which  the  Bundesrath  is  called  upon  toper- 
form  judicial  functions,  are  as  follows: 

I.  It  may  receive  complaints  of  a  refusal  of  justice  on  the 
part  of  the  state  courts.  The  decision  must  be  based  upon, 
and  be  in  accordance  with,  the  constitution  and  laws  of  the 
state  in  which  the  case  arises.  If  it  be  found  that  justice 
has  been  refused  or  retarded,  the  Bundesrath  has  the  power, 
by  appropriate  measures,  to  force  the  state  to  remedy  the 
wrong.;}:  If  the  state  courts  are,  however,  by  state  law  in- 
competent to  decide  the  case  on  which  the  claim  is  based, 
the  claim  is  invalid,  as  there  is  obviously,  under  the  cir- 
cumstances, no  refusal  of  justice. 

*  Laband.  I.,  240.  An  example  summarized  b.y  Laband  (I.,  246, 
note  I)  will  serve  as  an  illustration  of  this  side  of  the  Bundesrath's 
activity.  During  the  session  of  Februry  27th,  1871.  the  President  of 
the  Bundesrath  announced  that  a  difference  of  opinion  had  become 
apparent  between  the  Federal  Chancellor's  Office  (Bnndeskanzleramt) 
and  the  Senate  of  Bremen,  as  to  whether  an  order  issued  in  Bremen 
forbidding  paddling,  was  or  was  not  in  harmony  with  the  imperial 
law  relating  to  industries.  The  matter  was,  at  the  suggestion  of  the 
President,  referred  to  the  IV.  Committee  to  be  reported  upon.  The 
committee  decided  that  the  order  was  in  opposition  to  the  objects  of 
the  federal  law.  The  Plenipotentiary  of  Bremen  thereupon  declared 
that  the  Senate  of  his  city  would  repeal  the  order  in  question. 

f  See  Laband,  I.,  247.  The  decision  which  devolves  on  the  Bundes- 
rath in  regard  to  the  federal  execution  is  judicial  in  its  nature. 

JSchulze,  Deut.  Stasitsr.,  II.,  63-4.  Laband.  248.  Cons.  Art.  77,  f., 
the  clause  of  the  constitution  which  treats  this  subject  is  copied  from 
the  29th  Art.  of  the  Wiener  Schlusxacte. 


64  The   German  Bundesrath. 

II.  The  Bundesrath  is  also  empowered  by  the  constitu- 
tion, (Art.  76,  1)  to  decide,  on  the  appeal  of  one  of  the  par- 
tie?,  cases  arising  between  different  members  of  the  union, 
so  far  as  they  are  not  simply  civil  cases  falling  within  the 
jurisdiction  of  the  regular  courts.     This  is  only  a  species  of 
last  resort,  a  means  to  promote  the  possibility  of  a  peaceful 
solution  of  difficulties,  for  war  between  the  conflicting  states 
is  of  course  absolutely  excluded.* 

III.  Finally,  Article  76, 2,  of  the  Constitution  confers  upon 
the  Bundesrath  a  power,  to  say  the  least,  somewhat  startling 
in  its  nature — that  of  arbitration  when  difficulties  of  a  con- 
stitutional character  arise  between  the  different  factors  of 
the  state  governments.     The  clause  reads,  "  In  case  of  con- 
flicts of  a  constitutional  nature  in  states  where  there  is  no 
appointed  authority  to  decide  such  matters,  the  Bundesrath 
shall,  upon  the  application  of  one  of  the  parties,  settle  the 
difficulty  amicably.     If  this  does  not  succeed,  the  matter 
shall  be  disposed  of  with  the  forms  of  federal  legeslation."f 
It  is  to  be  observed  that  the  Bundesrath  is  to  interfere  only 
when  appealed  to  by  one  of  the  parties  concerned.     Should 
the  conflict,  however,  be  of  a  nature  to  prevent  the  fulfil- 
ment of  the  duties  of  the  state  towards  the  federation,  the 
Bundesrath  (in  accordance  with  article  19  of  the  constitu- 
tion relating  to  the  execution}  has  the  right  to  interpose 
without  being  called  upon.     Farther,  where  the  throne  in 

*  Recognizing  the  un fitness  of  the  Bundesrath  to  act  in  this  capa- 
city, Martitz  (1.  c.,  p.  37)  observes  :  "  Man  wird  kaum  umhin  konnen. 
nach  dem  Vorgange  der  nordamerikamschen  und  schweizerischen 
Verfassung  auch  fur  die  norddeutsche  Union  ein  Bundesgericht  mit 
der  Aburtheilung  der  Streitigkeiten  zwisuhen  den  Bundesgliedern  zu 
betrauen."  See  also  Seydel,  Holzeudorfl',  and  Brentano's  Jahrbuch, 
III.,  28ft,  ft. 

f  "Verfassungsstreitigkeiten  in  solchen  Buudesstaaten,  in  deren 
Verfassung  nichteine  Behorde  zur  Entscheidung  solcher  Streitigkeiten 
bestimmt  ist,  hat  auf  Anrufeii  eines  Theiles,  der  Bundesrath  giitlich 
austugleichen,  oder,  weuu  das  nicht  gelingt.  im  Wege  der  Reichs- 
gesetzgebung  zur  Erledigung  zu  bringeii." 


The   German  Bundesrath.  65 

a  state  is  the  object  of  contention  between  two  or  more 
pretenders,  the  Bundesrath  not  only  may.  but  must  exert 
an  influence  on  the  outcome,  inasmuch  as  the  rights  of 
membership  in  the  Empire  are  exercised  by  the  head  of 
the  state.  The  Bundesrath  would  be  forced  to  decide 
which  aspirant  to  the  throne  was  entitled  to  be  represented 
in  its  midst  by  his  plenipotentiaries. 

Conflicts  of  a  constitutional  nature  are  very  apt  to  be 
directly  and  indirectly  connected  with  a  misunderstanding 
between  the  monarch  and  his  subjects,  or,  more  specifically, 
between  the  cabinet  (Regierung)  and  the  representatives  of 
the  people.  In  the  decision  of  a  case  of  this  character,  the 
Bundesrath  is  obviously  no  impartial  judge.  It  is  itself  an 
assembly  of  rulers,  and  possesses  all  the  prejudices  of  rulers. 
Where  the  sympathies  of  the  arbitrator  would  be,  is  clear. 
The  influence  its  members  might  exert  on  one  of  their  own 
number,  in  their  attempt  amicably  to  bring  about  an  un- 
derstanding, would  be  neutralized  by  the  well-founded  sus- 
picion with  which  an  angry  parliament  would  view  their 
intervention.  Thus  it  is  expedient  that  ultimately  a  coun- 
terbalancing factor,  the  Reichstag,  should  be  called  in, 
or,  as  the  Constitution  expresses  it,  that  the  decision  of  the 
question  should  take  the  form  of  a  legislative  act.  Com- 
posing this  bicameral  court  we  have,  on  the  one  hand,  the 
plenipotentiaries  of  the  Bundesrath,  voting  according  to  the 
instructions  of  the  monarchs,  whose  brother  ruler  is  in- 
volved, on  the  other  hand,  the  representatives  of  the  people, 
influenced  by  a  variety  of  political  tendencies  and  ready  to 
defend  their  fellow  representatives  in  the  state.  As  Laband 
says,*  when  two  such  bodies  are  called  upon  to  exercise 
the  functions  of  a  court  of  justice,  for  which  they  are  in 
no  way  adapted,  and  attempt  to  agree  upon  a  verdict,  the 
probability  that  the  motives  of  the  decision  will  be  of  a 
purely  judicial  character  is  extremely  small.  The  consti- 

*  Page;252. 


66  The   German  Bundesrath. 

tution  does  not,  in  fact,  require  that  the  decision  should 
have  a  judicial  character. 

The  solution  of  the  difficulty  may  take  the  form  of  a 
change  of  the  state  constitution,  or  of  an  annulling  of  that 
portion  of  the  constitutional  law  of  the  state  which  gave 
rise  to  the  conflict.  For  Article  2  of  the  imperial  Consti- 
tution, which  declares  that  federal  law  takes  precedence  of 
the  state  laws,  applies  to  a  case  of  legislation  based  on  the 
clause  we  have  been  considering,  by  which  the  existing  law 
of  one  of  the  states  is  modified  by  the  Empire.* 

The  moral  of  all  this,  which  is  not  likely  to  escape  a  cit- 
izen of  the  United  States,  is  formulated  by  probably  the 
most  distinguished  authority  on  German  constitutional  law, 
as  follows :  "  A  consideration  of  this  clause  yields  two  sig- 
nificant results:  first,  it  is  apparent  that  the  individual  state 
is  not  sovereign  in  the  field  left  to  it,  but  the  Empire  stands 
above  it,  in  reality  the  highest  power,  in  truth  the  real  sov- 
ereign ;  secondly,  it  is  obvious  from  the  functions  of  the 
organs  of  the  Empire,  in  particular  those  exercised  by  the 
Bundesrath,  that  legislation,  administration  and  justice  are 
not  sharply  defined  departments,  but  are  simply  forms  in 
which  the  one  and  indivisible  power  of  the  state  manifests 
itself."  f 

*Laband,  252. 

fLaband,  2~>2.  This  power  of  interfering  with  the  state  constitu- 
tions is  sharply  criticized  by  Martity.in  his  suggestive  little  book  on  the 
North  German  Constitution  (Betrachtungeu  uber  die  Verfassung  des 
Norddeutschen  Bundes  18C8).  But  while  he  calls  the  provisions  on  this 
matter  "  in  hohem  grade  bedenklicfi,"  and  asserts  that  "  der  gesammte 
verfassungsnmssige  Rechts7Aistand  der  deutschen  Staaten  in  Frage- 
gestcllt  wild"  (pp.  29  and  31)  he  admits  that  "der  Bund  deu  Verfas- 
suiigscouflikteu  der  Eiuzelstaaten  schlecterdings  nicht  gleichgiltig 
gegeniibersteht-n  kann,  dass  ihm  in  jedem  Falle  die  Moglichkeit 
gewalirt  werden  muss,  denselben  die  gefahrlichen  Spitzen  abzu- 
schneiden,  diese  Nothwendigkeit  bedarf  keines  Erweises."  In  other 
words,  this  contingent  interference  with  the  affairs  of  the  individual 
state  is  a  tradition  so  deeply  rooted  in  the  German  mind  that  even  the 
liberal  thinkers  canuot  free  themselves  from  it.  A  further  example 
is  to  be  found  in  the  liberal  constitution  of  1848-9. 


The   German  Bundesrath.  67 

The  preceding  study  ought,  it  seems  to  me,  to  help  us  to  a 
truer  view  of  the  real  nature  of  our  own  government.  As 
we  have  seen,  the  German  Constitution  was  not  the  pro- 
duct of  abstract  political  speculation,  but  was  strictly  con- 
ditioned, at  its  formation,  by  existing  national  traditions  and 
by  the  specific  demands  of  the  moment.  We  find  in  it  no 
room  for  institutions  copied  from  other  federal  systems.  It 
is  relative  to  the  German  nation,  purely  indigenous,  and 
hence,  BUI  generis.  But  is  not  the  same  true  of  our  own 
form  of  government  ?  Have  the  principles  enunciated  in 
the  Federalist,  for  example,  a  universal  applicability,  or  are 
they,  to  a  much  greater  extent  than  we  are  wont  to  suppose, 
simply  rules  for  a  single  nation,  at  a  particular  period  of  its 
development?  We  may  seek  an  answer  to  this  question  in 
two  directions.  We  may  investigate  the  origin  of  our  con- 
stitution, and  determine  whether  or  no  its  founders  were 
governed  in  their  work,  by  a  desire  to  realize  abstract 
ideals,  or  were  contented,  in  the  main,  to  adopt  such 
arrangements  as  were  sanctioned  by  the  experience  of  the 
states.  Or  we  may  compare  our  constitution  with  other 
examples  of  federal  organizations,  and  see  whether  there  be 
a  unity  running  through  them  all  which  would  justify  us 
in  assigning  an  absolute  value  to  those  rules  which  have 
been  observed  in  the  formation  of  our  own  federation.  In 
respect  to  the  origin  of  the  constitution  of  the  United 
States,  I  have  attempted  to  show  in  a  previous  article,* 
that  our  existing  form  of  government  had  a  much  more 
gradual  development  than  is  generally  supposed.  The 
work  of  the  Convention  of  1787  consisted  chiefly  in  what 
may  be  called  the  federating  of  the  political  institutions 
of  the  individual  states,  even  the  original  features  being 
strictly  in  harmony  with  the  national  traditions.  The 
second  method  by  which  it  seems  possible  to  reach  a 
solution  of  the  problem  suggested  above,  we  have  pur- 

*The  Original  and  Derived  Features  of  the  Constitution.  Annals 
of  the  Am.  Acad.  of  Political  and  Social  Science,  Oct.,  1890. 


68  The   German  Bandesrath. 

sued  in  the  foregoing  pages.  The  result  is  clear.  We 
have  found  upon  studying  the  constitution  of  the  chief 
example  of  a  federal  state  in  Europe,  that  it  is  not  formed 
according  to  the  same  plan  as  that  of  the  United  States. 
The  German  Federation  is,  as  De  Tocqueville  once  said  of 
our  own  union,  in  reality,  a  new  tiling  with  an  old  name. 
In  attempting  to  study  it  with  our  national  preconceptions, 
we  find  ourselves  at  first  baffled  by  the  constant  disregard 
of  the  formulations  of  our  classical  works  on  politics.  It 
is  only  when  we  recognize  the  possibility  of  independent 
constitutional  development  in  lines  wholly  different  from 
those  which  the  United  States  has  followed,  and  cease  to 
try  to  classify  all  political  phenomena  according  to  a  sys- 
tem applicable  in  general  only  to  our  own  national  evolu- 
tion, that  we  begin  to  perceive  the  real  nature  of  the  Ger- 
man Imperial  Constitution.  But  if,  as  we  seem  warrantel 
in  concluding,  the  political  institutions  of  a  nation  must  be 
relative  to  its  social  and  economic  status,  the  attempt  to  lay 
down  general  principles  of  government  applicable  to  every 
country,  or  even  to  a  single  country  in  every  stage  of  its  de- 
velopment, must  always  prove  futile.  Every  nation  is, 
however,  in  a  constant  state  of  flux.  Our  own,  in  particu- 
lar, has  undergone  the  most  profound  changes  since  the  close 
of  the  last  century,  and  we  have,  perhaps,  cause  to  envy  the 
good  fortune  of  those  countries  where  the  constitution  is 
not  so  rigid  as  to  preclude  a  more  or  less  unconscious  re- 
adjustment between  the  political  institutions  and  the  con- 
stantly changing  social  and  economic  life  of  the  nation. 


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